440
in order to affirm that the limitations of freedom and movement of Sergeant Girone
constituted a violation of the international standard of due process. According to
Italy, Sergeant Girone had been detained in India for “well over four years”
71
without valid charges being brought against him contrary to the provisions of the treaties
and international jurisprudence on human rights.
Taking into consideration the “concrete situation” of Sergeant Girone, Italy
argued that the conditions imposed on him by India corresponded “to a disproportionate, useless and unreasonable deprivation of liberty”.
72
In this regard, one could
remember that in his separate opinion to the ITLOS order of 24 August 2015, Judge
Jesus not only expressed similar concerns but also outlined the importance of considerations of humanity observing that “such situations, assessed in the context of a
request for provisional measures, carry with them a built-in need for urgency, as
considerations of humanity are important in this regard”.
73
Otherwise, as can be seen from reading the individual opinions of the judges of
ITLOS, some were of the view that removing the restrictions on the two marines
would not guarantee equal rights to both parties. In particular, some of the judges,
taking a stand in favour of India, maintained that any “humanitarian considerations”
regarding the Italian defendants had to be balanced with those regarding the Indian
victims who had died.
74
Taking into account various indisputable factors raised by
Italy such as the presence of Sergeant Girone’s immediate family in Italy, the
marine’s distance from his children during the most important years of their lives,
alleviated only by sporadic visits which could in no way to replace family life, and
the restriction on the marine’s liberty, the Arbitral Tribunal stated that “considerations of humanity therefore make it appropriate for the Arbitral Tribunal to address
promptly and in detail in a language which he understands of the nature and cause of the charge
against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in
his presence, and to defend himself in person or through legal assistance of his own choosing; to
be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned
to him, in any case where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the
witnesses against him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter
if he cannot understand or speak the language used in court; (g) Not to be compelled to testify
against himself or to confess guilt”.
71 PCA, The Enrica Lexie Incident, para. 112.
72 Ibidem, para. 113.
73 ITLOS, The “Enrica Lexie” Incident, Order, Separate Opinion of Judge Jesus, para. 11.
74 For instance, in his dissenting opinion Vice-President Bouguetaia observed that “India argued, in
vain, that ‘well-being and humanitarian considerations in favour of persons accused of a serious
crime have to be balanced with that of the victims of the crime’ and that ‘it is a generally accepted
principle that the latter should prevail in case of conflict’ (paragraph 94 of the Order). The effort
went waste and this comes as no surprise since urgency no longer obtains in respect of the Indian
fishermen: they are dead!!! That perhaps explains the selective invocation of humanitarianism.
Here again, I regret that I am unable to bring myself to go along with the reasoning of the Tribunal
when it finds ‘urgency’ where there is none”. See The “Enrica Lexie” Incident, Order, Dissenting
Opinion of Vice-President Bouguetaia, para. 26.
F. Delfino
in order to affirm that the limitations of freedom and movement of Sergeant Girone
constituted a violation of the international standard of due process. According to
Italy, Sergeant Girone had been detained in India for “well over four years”
71
without valid charges being brought against him contrary to the provisions of the treaties
and international jurisprudence on human rights.
Taking into consideration the “concrete situation” of Sergeant Girone, Italy
argued that the conditions imposed on him by India corresponded “to a disproportionate, useless and unreasonable deprivation of liberty”.
72
In this regard, one could
remember that in his separate opinion to the ITLOS order of 24 August 2015, Judge
Jesus not only expressed similar concerns but also outlined the importance of considerations of humanity observing that “such situations, assessed in the context of a
request for provisional measures, carry with them a built-in need for urgency, as
considerations of humanity are important in this regard”.
73
Otherwise, as can be seen from reading the individual opinions of the judges of
ITLOS, some were of the view that removing the restrictions on the two marines
would not guarantee equal rights to both parties. In particular, some of the judges,
taking a stand in favour of India, maintained that any “humanitarian considerations”
regarding the Italian defendants had to be balanced with those regarding the Indian
victims who had died.
74
Taking into account various indisputable factors raised by
Italy such as the presence of Sergeant Girone’s immediate family in Italy, the
marine’s distance from his children during the most important years of their lives,
alleviated only by sporadic visits which could in no way to replace family life, and
the restriction on the marine’s liberty, the Arbitral Tribunal stated that “considerations of humanity therefore make it appropriate for the Arbitral Tribunal to address
promptly and in detail in a language which he understands of the nature and cause of the charge
against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in
his presence, and to defend himself in person or through legal assistance of his own choosing; to
be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned
to him, in any case where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the
witnesses against him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter
if he cannot understand or speak the language used in court; (g) Not to be compelled to testify
against himself or to confess guilt”.
71 PCA, The Enrica Lexie Incident, para. 112.
72 Ibidem, para. 113.
73 ITLOS, The “Enrica Lexie” Incident, Order, Separate Opinion of Judge Jesus, para. 11.
74 For instance, in his dissenting opinion Vice-President Bouguetaia observed that “India argued, in
vain, that ‘well-being and humanitarian considerations in favour of persons accused of a serious
crime have to be balanced with that of the victims of the crime’ and that ‘it is a generally accepted
principle that the latter should prevail in case of conflict’ (paragraph 94 of the Order). The effort
went waste and this comes as no surprise since urgency no longer obtains in respect of the Indian
fishermen: they are dead!!! That perhaps explains the selective invocation of humanitarianism.
Here again, I regret that I am unable to bring myself to go along with the reasoning of the Tribunal
when it finds ‘urgency’ where there is none”. See The “Enrica Lexie” Incident, Order, Dissenting
Opinion of Vice-President Bouguetaia, para. 26.
F. Delfino