NEW DELHI: Nearly a year after the arrest of two Italian marines on charges of killing two Kerala fishermen, the Supreme Court on Friday ordered their trial by a Union government constituted special court, rejecting Italy’s plea for quashing the case and ruled that Kerala government had no jurisdiction to prosecute the foreigners.

A bench of Chief Justice of India Altamas Kabir and Justice J Chelameswar said the state had no jurisdiction over the alleged crime arising from a February 15, 2012 incident, claimed by Italy to have occurred on the high seas. It said only Indian federal government could prosecute the alleged offenders.

The special court, to be constituted by the Union government in consultation with the CJI, will try the marines, Massimilano Latorre and Salvatore Girone , under provisions of the Indian law – the Criminal Procedure Code — and the UN Convention on Law of Sea (Unclos), 1982, the bench said.

Once the special court was constituted, the proceedings pending before a Kollam court would be transferred there, the bench ordered and said it would be open for Italy and the marines to raise the jurisdictional issue before the special court.

Italy had said India had no jurisdiction to try its marines and had sought quashing of the case, saying the two men, who belonged to the country’s armed forces, were acting bona fide when they fired, believing the fishermen to be pirates.

Significantly, the court accepted senior advocate Harish Salve’s request on behalf of Italy to shift the two marines from Kochi to New Delhi. The court also agreed to the marines staying under the supervision of the Italian embassy here and asked them report to Chankyapuri police station once a week.

Additional solicitor general Indira Jaising, appearing for the Union government, opposed immediate shifting of the marines from Kochi to Delhi saying it should be deferred till the special court was constituted and the trial venue finalized.

But with the Italian embassy promising to supervise the marines’ stay, the court ordered their shifting to Delhi. It clarified that till the special court was constituted, the marines would be deemed to be under the Supreme Court’s custody. The bench asked them not to leave Delhi without prior permission of the court.

The Italian government had on April 23 moved the Supreme Court seeking release of the two marines, arrested by Kerala Police for allegedly killing two fishermen while guarding merchant vessel Enrica Lexie, on the ground that their detention breached sovereign immunity.

"The Italian government's case is that no Indian law will apply. These are country to country actions governed by international conventions. We deal with the Indian republic and not with an Indian state," Salve had argued.

Latorre and Girone, who were arrested on February 19, were military naval officials in active service of the Italian government and the action taken by them was under the bona fide belief that they were protecting the vessel from a pirate attack, Italy had argued.

After the incident on February 15 last year, the ship had sailed 38 nautical miles on the high seas when it received information by phone and e-mail from the Maritime Rescue Coordination Centre, Mumbai, requesting it to turn back to Kochi port to assist and identify suspected pirates who had been arrested.

"In good faith, the vessel turned its course and came to Kochi port on February 16. The master of the vessel was under no obligation under law to change course but only agreed to do so as part of good faith to promote international cooperation in combating piracy," Italy said.

