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Italian ambassador to India not entitled to immunity: court

AFP-JIJI

India’s top judge said Monday that the Italian ambassador cannot claim diplomatic immunity in a growing dispute over two Italian Marines who skipped bail while on trial for murder.

Chief Justice Altamas Kabir said Daniele Mancini, who had negotiated the marines’ release last month so they could vote in Italy’s 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 into the case, which has caused a diplomatic crisis between Rome and New Delhi.

Massimiliano Latorre and Salvatore Girone, who are accused of murdering two Indian fishermen last year, had been given permission to fly to Italy to cast their votes 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 Supreme Court ordered that Mancini should remain in the country and explain himself in court Monday.

Mancini’s lawyer argued that the diplomat enjoyed immunity in line with international rules that also guarantee foreign representatives freedom of movement. But he pledged that his client would stay in the country.

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.

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

  • http://socioproctology.blogspot.co.uk/ windwheel

    There is a fundamental misunderstanding at work here. The Indian Supreme Court is asserting its right to claim that in its opinion the Italian Ambassador has voided his immunity and issuing an order on that basis. However, under the Geneva Convention, the Ambassador has no right or power to void his immunity, only his home country can do so. The Supreme Court may pretend, on the basis of an argument heard under the rubric of Public Interest Litigation, that it has no cognizance of a second act, by the Ambassador’s home country, asserting or voiding his immunity and that being the case, it is perfectly at liberty to make any observation or order, no matter how foolish or contrary to Law- however, such observations and orders have no legal force with respect to the Ambassador.
    India will not be guilty of breaching the Geneva Convention unless it takes some concrete action to prevent the Ambassador from going where he wishes. The fact that they may take such action on the basis of an illegal order by the Supreme Court is irrelevant. Any Govt. may choose to defy the Law at any time. The Ambassador has recourse to International Law, not the Indian Supreme Court, if his diplomatic immunity is violated.
    Put simply, a Court can say anything it likes and order anything it likes with respect to people over whom it has no jurisdiction. Until there is physical enforcement of a judgement against a diplomat, no breach of diplomatic immunity arises.
    The comic element in this is that the Supreme Court’s bizarre action has prevented the Govt of India from expelling the Ambassador- which they would otherwise have been justified in doing to highlight their grievance with the Italian Govt.
    To be clear, the saber rattling on the part of the Supreme Court has absolutely no practical meaning- other than signalling its displeasure- nor does the Italian Ambassador believe himself in any danger of detention.
    The U.S. Supreme Court is welcome to say that Vladimir Putin is a dolphin who has escaped from the Miami Sea world and showed be returned there forthwith but no diplomatic issue arises until the U.S. Govt. tries to enforce that Judgement because it is a matter of fact, not judicial opinion, that Vladimir Putin is subject to Russian jurisdiction even though his shaved and glistening body does look remarkably like a dolphin.

    • Jbomb

      “Any Govt. may choose to defy the Law at any time”

      Perhaps in your country government can defy court orders but not in India.

      “India will not be guilty of breaching the Geneva Convention unless it
      takes some concrete action to prevent the Ambassador from going where he
      wishes”

      “Until there is physical enforcement of a judgement against a diplomat, no breach of diplomatic immunity arises”

      “The Ambassador has recourse to International Law, not the Indian Supreme Court, if his diplomatic immunity is violated.”

      Well the Indian government did issue a directive to airport authorities to prevent Mancini from leaving. There!!! Now the Italian government can do whatever it thinks fit. Indians do not give a damn about it.

      “under the Geneva Convention, the Ambassador has no right or power to void his immunity, only his home country can do so.”

      Two points:
      1) Why did Mancini give his guarantee that the marines would return if he thought he had immunity from the legal processes? Was that an attempt to hoodwink the legal process? If so, then a case of cheating should be made out against him. BTW such a conduct is unbecoming of an ambassador. Is that how the Italian government works?

      2) The marines were allowed to go back on the “personal” guarantee of Mancini. His guarantee was accepted as that of an “individual” and NOT as a “diplomat.” So if the Italian government wanted their ambassador to India to be set free then they should have fired Mancini and the new appointee to the post would have been a free man.

      • http://socioproctology.blogspot.co.uk/ windwheel

        No breach of a law occurs till some concrete action is taken. Here, though the Italians complained that their diplomats immunity had been violated they could not point to any breach. In the event, they backed down rendering the point moot.

        Diplomatic immunity is based on reciprocity. Now, a U.S Court could arrest an Indian diplomat for contempt on the grounds that India does not reciprocally grant immunity from contempt. However, the State Dept. can successfully appeal this decision to a higher court by providing evidence that what may be true of a second rate power like Italy is not true of America.

        Your two points are misconceived.
        1) Surely, Mancini’s behaviour is only explicable if he thought his diplomatic immunity was inviolable.
        2) If the Italians fired the Ambassador then they void his immunity and he could be tried in India and jailed under International law.

        ‘Perhaps in your country government can defy court orders but not in India.’ This is not true. Suppose the Court had ordered the arrest of the Pakistani, or Chinese or American Ambassador under the same principle. Then, it would be up to the Executive to decide what is in the National Interest- to comply with the Court or defy it. There is a precedent for the President to declare a state of Emergency and take the appropriate action.

        By the doctrine of Command Responsibility, it is a crime under International Law to obey even the orders of an Apex Court if those orders constitute a crime against Humanity.

  • ssd

    @Windwheel

    Italy waived the immunity of it’s ambassador under Vienna convention when they made him the guarantor to ensure the marines return to India. The Italian government and the ambassador approached the court with the plea. Therefore, there is indeed waiver by the Italian government. Now they cannot go back and claim there was no waiver. You can argue if immunity can be implicit waived or not. That depends on how good a lawyer you are.

    Secondly, every law has exceptions including the Vienna convention.
    Article 32 (3) The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

    4.Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

    So your argument is that India is violating Article 32(4). We haven’t gotten to that part yet. We are still at Article 32(3). Restriction on movement is not a judgement. The Supreme Court is India. There is no distinction. The justices are well aware of the convention and are not acting illegally. They are restrained even in their determination.

    If the marines don’t return by 22nd they will hold the Ambassador in contempt and ask the Indian executive to declare him persona non-grata. This judgement will be in compliance with the Vienna convention. Convicted criminal ambassador won’t serve time in India, Italy can choose to ignore the judgement. How is that for justice in line with the International Law.

    If you must make a legal argument make one. Otherwise please stop just repeating what someone else told you on why it’s illegal.

    • tripat

      According to Indian court of law, no institution, nation, body or a designation can produce an affidavit in court, not even president of India can give an affidavit as president of Republic of India, he has to give produce it as an individual, in this case, 2 fishermen lost life in sea, cost guards caught to marines and a case was registered. An Italian citizen came as a guarantor ( he can not produce a guaranty as an ambassador) so he does not enjoy any immunity in the case. And if the bail he produced is not honored he will be held responsible as an individual, not his post. Moreover Supreme court of INDIA did not asked him or Italian gov. to be to produce a bail for marines, Mancini came of his own. So the case is simple in the court of law, he as a common citizen of Italy is accused of not honoring an affidavit and if on or before 22 march marines do not report back in court of law in INDIA. And as the case is not against the ambassador but only Mr. Mancini (Ambassador cannot produce an affidavit) Vienna convention Diplomatic immunity does not come into play.

  • Jbomb

    “Surely, Mancini’s behaviour is only explicable if he thought his diplomatic immunity was inviolable.”

    So he gave his “personal” guarantee thereby submitting to the Indian judicial process while simultaneously planning to invoke his diplomatic immunity to escape that process?? Clear case of malafide intentions.

    “If the Italians fired the Ambassador then they void his immunity and he
    could be tried in India and jailed under International law.”

    Mancini had lost his immunity when he gave his guarantee to the Supreme Court of India. He gave the guarantee of his own free will. Nobody invited him to do that!

    “Then, it would be up to the Executive to decide what is in the National Interest- to comply with the Court or defy it.”

    That is not how it works in India. If any officer refuses to execute an order of a court of law, he is charged with contempt and if convicted of the same becomes ineligible to hold his post. There is no “defying” that can take place.

    Perhaps the only way out is through legislative action but the Supreme Court
    can strike down any legislation which it thinks contradicts/clashes
    with other provisions of law. I think what some people are failing to
    understand is that the judiciary is highly independent(of the executive) in India. Its
    powers are unlimited within its jurisdiction.

    I thought that it is only in failed states that the executive “defies” the judiciary.

    “There is a precedent for the President to declare a state of Emergency and take the appropriate action”

    lol. A state of emergency would not be imposed over such a small issue. Anyways, a state of emergency only gives a temporary leeway to the executive branch of the govt. After the 1 (+ 0.5) year(s) period of emergency, the executive branch could be held accountable for its actions. A former PM tried to misuse the provisions of emergency. She did get to see the insides of a jail after the expiry of emergency period, not to mention a huge election loss. So there you go.

    “it is a crime under International Law to obey even the orders of an Apex
    Court if those orders constitute a crime against Humanity.”

    Well if Indian politicians had to choose between complying with the orders of the Supreme Court of India and the so-called “international law,” they would take the easy way out and comply with the orders of the Supreme Court. Got a problem with that? Go to the UN!!!

    _______________________________________________________________

    It all boils down to this:-

    A brown/yellow/Asian person’s life is no less worthy than that of a “white” man.