Wednesday, March 11, 2015

Detention of Anti Pirate Crew Passes 500 Days and Declared Illegal by Maritime Agencies

Shameful Case of a Vessel Dedicated to Preserving Law on the High Seas
Shipping News Feature

INDIA – Way back in October we wrote that the suspicious circumstances surrounding the detention of the anti-pirate patrol ship Seaman Guard Ohio had already lingered on for far too long, at that stage over a year in fact. Now a joint statement from Human Rights at Sea (HRAS) and The Mission to Seafarers has clarified the position and uncovered the shameful truth that six British men, long with 26 other crew, are still under detention in India 509 days after their initial arrest, even though they were found innocent by Justice Prakash in the Madras High Court on 10 July 2014, more than 8 months ago.

The case paints the authorities in Tamil Nadu in the worst possible light as they appear to be acting in direct contravention of local and national law. The 6 men, all former soldiers from the UK, John Armstrong, Nick Dunn, Billy Irving, Nick Simpson, Ray Tindall and Paul Towers have been detained with other crew despite international appeals for their freedom. Human rights barrister and founder of HRAS David Hammond said:

“Human Rights at Sea has been closely following the Seaman Guard Ohio case and has drafted a detailed study, with co-ordination with the UK families, UK crew and engaged welfare organisations, highlighting the case facts and human rights issues which have emerged over the last 17 months of the crew’s detention in India.

“Human Rights at Sea remains very concerned at some of the constabulary and judicial actions in the handling of the case, and of the continued detaining of the crew following charges being quashed by the Madras High Court on 10 July 2014. Human Rights at Sea urges the Indian authorities to bring this case to a swift conclusion in line with Indian law and applicable intentional Human Rights conventions and for the crew to be repatriated to respective home States without delay.”

Director of Justice and Public Affairs, the Revd Canon Ken Peters, with The Mission to Seafarers global maritime welfare charity, made a direct appeal to senior politicians to become involved in a case which appears to leave Indian justice in a very poor light, saying:

“The Mission to Seafarers has been working with families in the UK, as well as representatives of the families of the other crew members 14 from Estonia and 12 Indians on this harrowing case since it began in October 2013. The crew have been held for over 500 days, firstly in prison in very harsh conditions, then on bail, and now just waiting for their passports to be returned to get home. They have long since had the charges against them completely quashed and they need to get back to their anxious families.

“I most humbly appeal directly to the British Prime Minister Mr David Cameron, our Foreign Secretary Mr Philip Hammond and to Indian Prime Minister Mr Narendra Modi to look into this case immediately and take steps for the Indian legal process to be expedited without any further delay. Human Rights at Sea have provided a welcome case study which indicates that the men are being unlawfully detained and we maintain that they must be allowed to return home to their loved ones with all speed.”

HRAS has prepared a list of facts as it knows them which gives a lucid picture of the defence put up by the crew and management of the vessel from the time she was first intercepted off the Indian coastline. A précis version is shown below which sets out the case as put to HRAS.

The Sierra-Leone flagged MV Seaman Guard Ohio which was owned by AdvanFort, a US-based firm that provided private maritime security services and was then a member of the international Security Association for the Maritime Industry (SAMI). The vessel was involved in supporting anti-piracy operations by providing armed escort services to commercial vessels travelling in what was then widely described as pirate-infested waters in the Indian Ocean.

On 12 October 2013 the vessel was intercepted by the Indian Coastguard off the Tuticorin coast. Mr. Paul Towers asserted that the vessel was actually 12.8 Nautical Miles (NM) from shore, but that the authorities had concluded they were in fact 10.8NM from shore and within Indian Territorial Waters (TTWs). It is further asserted by the crew that this calculation by the Indian authorities was undertaken by using two small islands as the base line for their measurements.

The crew were arrested and detained by the Indian Coastguard near Tuticorin Port on suspicion of possession of arms, without a proper license. The crew consisted of 35 individuals, comprising 10 vessel crew and 25 armed guards. They included Indians, Britons, Ukrainians and Estonians. Amongst the crew, the following British nationals were onboard: Mr. Paul Towers, Mr. William Irving, Mr. Nicholas Simpson, Mr. Raymond Tindall, Mr. Nick Dunn and Mr. John Armstrong. Mr. Towers was separated and taken for interrogation by the authorities.

Six days later, on the 18 October 2013, most of the 35 crew were questioned by Tamil Nadu Police, before being remanded in custody. Two of the crew were not arrested (Captain and Engineer) at that stage and were instead allowed to remain on board the vessel to carry out maintenance work. They would be later arrested by the Tamil Nadu Police.

Investigations were made by the Tamil Nadu Police against the crew for alleged offences under the Essential Commodities Act 1955, as well as the Indian Arms Act 1959. The investigating agency (Q Branch Police) submitted charge sheet No.1/2014 against 45 accused persons including the Company, its Director, 35 crew and 8 locals for offences under the Arms Act 1959, Essential Commodities Act 1955, Motor Spirit & High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order 1998 and Indian Penal Code 1860.

The Indian authorities asserted that they had intercepted the vessel when it was sailing 15 nautical miles off the coast of Tamil Nadu . Inspector-General and Commander Coastguard (Region East), Satya Prakash Sharma, said ‘the operations centre had received information late on Friday that a vessel with armed guards on board was seen near the Tuticorin coast. After putting the vessel under electronic surveillance, Indian Coastguard Vessel ‘Naiki Devi’ intercepted and escorted it to the Tuticorin Port on Saturday.’ The police also reported that they found weapons and ammunition on board, which had not been properly declared. Officials stated that the vessel was not authorized to carry arms in Indian waters and that it had never produced the necessary paperwork. The Indian police seized 35 semi-automatic weapons and nearly 5,700 rounds of ammunition from the security guards on the vessel.

The crew, however, asserted that all weapons and ammunition, personnel and all other relevant information was passed to the Indian Coast Guard on initial VHF contact. On being asked to follow the Coast Guard to port, once again, all relevant information was passed to the port authorities before the vessel’s anchor was raised. Further, the Captain asked permission to enter Indian waters and subsequently the Coast Guard requested that the vessel was to follow them in to port.

AdvanFort, in an initial press release dated 14 October 2013 stated that India’s Coastguard and police allowed the vessel to enter to port to refuel and shelter from a cyclone which hit India’s eastern coast. It also said that all weaponry and equipment on board was properly registered. The then flag State asserted that the vessel had been illegally lured into the port.

On 20 October 2013, bail petitions were dismissed by Sessions Judge Paul Durai. On 23 October 2013, 22 foreign nationals among the 35 arrested crew were moved from Palayamkottai Central Prison to Chennai Puzhal Central Prison with tight security days after they complained of poor living conditions in the jail. On the same day, the police sought custody of 3 others (2 Indian nationals and a UK National, Mr. Paul Towers) for 7 days.

Opposing the plea, counsel for AdvanFort submitted that the vessel was off the Indian territorial waters when it was detained on 12 October 2013, and that there was no illegality whatsoever. He also argued that there was no need for further custodial interrogation as the Q branch police had already completed several rounds of questioning besides preliminary probes by the Indian Coastguard. The state government advocate submitted that the vessel had strayed well into Indian waters, and had no proper documents or permission for the vessel.

Petitioner Munithevan, owner of Vikaline Marine Engineering Pvt Ltd which provides human resources to Indian and foreign vessels, moved an anticipatory bail plea in relation to being wanted by police for illegally supplying 1,500 litres of diesel to the vessel. He submitted that he had supplied diesel only after seeking permission from the Assistant Director of Fisheries in Tuticorin after local agents approached him saying the vessel was stranded in international waters for want of fuel. He said he was not aware that the vessel was loaded with arms, or that it was guilty of [illegally] entering Indian territory.

On 24 October 2013, Judicial Magistrate C Kathiravan sent 2 Indian nationals and the UK National, Mr. Towers, to 7 days of police custody for further interrogation. On 18 December 2013, bail applications were made on behalf of all crew.

In their bail plea at the Tuticorin Magistrate Court, the crew alleged that the vessel was coming into port for supplies. On reaching the port, the crew assessed over 60+ officials from 8 different agencies barged passed the designated sentry onto the vessel, the majority refusing to sign the visitors’ log. Counsel for the crew contended that based on the Doctrine of Innocent Passage as envisaged in Section 3 of the UN Convention on the Law of the Sea 1982, no charge could be leveled at the crew.

However, the Madras High Court bench dismissed bail applications of all crew, stating that the probe was in the initial stage and if they were released on bail, it could affect the investigation. Mr. Justice M Sathyanarayanan said the petitioners did not provide sufficient documents to justify that they could be released on bail. However, he granted conditional bail to Mr. V Selvam, who was arrested along with 5 others for illegally providing 1,500 litres of diesel to the vessel.

On 26 December 2013: Judicial Magistrate-I C Kathiravan granted conditional bail after the crew argued that the Q branch had failed to file the charge sheet even after 60 days of their arrest.

On 7 January 2014, the Principal Sessions Court cancelled the conditional bail granted by a lower court to 35 crew allowing a criminal revision petition by Tami Nadu Q Branch police. Chief Judicial Magistrate K Ventatasamy held that it was ‘flawed’ and went against the orders of higher courts, including the Supreme Court, as the incident posed a challenge to national security.

In February 2014, the crew’s lawyer filed a new bail application detailing the brutal treatment of the prisoners, including their deteriorating health due to malnutrition, unsanitary conditions, mental harassment and emotional trauma, which they have endured since their arrests. This was supported the International Organisation of Masters, Mates and Pilots (MMP) and who spoke out publicly about the inhumane treatment of the crew and guards.

Conditional bail was granted on 26 March 2014, though the men were not released until 6 April 2014 as the Indian authorities repeatedly postponed the decision to release. The court did, however, refuse bail to the vessel’s Ukrainian Captain, Dudinik Valentyn and Mr. Paul Towers, both of whom remained in jail.

Quashing of charges 

On 10 July 2014, the charges against the Seaman Guard Ohio crew were quashed by Justice P N Prakash in the Indian Madras High Court (Madurai Bench), finding that:

a. The vessel had made a distress entry into Indian waters in search of food and fuel. It anchored at the outer limit of Tuticorin port out of necessity and was waiting for the supplies. Accordingly, the action was saved by the principle of ‘innocent passage’.

b. When the Coastguard questioned them, they admitted that there were arms and ammunitions on board. After bringing them to the port for investigation, they cannot be prosecuted for violation of the notification. There was no material that disclosed the commission of grave offences prejudicial to peace and offences under the Unlawful Activities (Prevention) Act 1967.

c. There was no material to suggest that the vessel had come into the territorial waters with ulterior purpose. Hence, the Arms Act against the crew of the vessel was quashed.

d. Both the Captain of the vessel as well as the supplier were punishable under the Essential Commodities and Control Act for the supply of 10 drums of fuel.

All charges were dropped and the crew were released from prison. However, the Tamil Nadu police held onto the crew’s passports whilst a decision by them was made as to whether or not to appeal the judgment.

On 25 August 2014, the State of Tamil Nadu filed an application for appeal (SLP (Crl) No.7099/2014) to the Supreme Court, along with an application seeking an interim stay of operation of the impugned judgment. The Tamil Nadu police maintained that the vessel was a threat to Indian national security, particularly in light of militants entering the country. The Supreme Court admitted the appeal and issued notice to the respondents. However, no order was issued to stay the operation of the impugned judgment as requested by the Tamil Nadu Police.

As a result, and at the time of writing, the crew continue to be detained in India without access to their travel documents and therefore the ability to return to respective countries.

The continued detention of the crew in India without release of their travel documents amounts to illegal detention affecting their personal liberties in violation of Article 21. The National Human Rights Commission (NHRC) India is required under s.12(a) of the Protection of Human Rights Act 1993 to inquire into such violations of human rights, and to ensure that public servant perform their duties as laid down by constitutional provisions and laws.

HRAS maintains that Universal Declaration of Human Rights, Articles 3, 5, 7 and 9 and the International Covenant of Civil and Political Rights (“ICCPR”), Article 9(1) are applicable on the facts and that the continued unlawful detention of the crew in India is in violation of the Indian constitutional provisions, and additionally violates international covenants.

HRAS has issued a family impact statement evidencing the effects of the ‘continued unlawful detention in relation to the crew, and their families’. It reads:

“Daily life has become more of survival, the health of the men is currently questionable. Considering we have little to no contact with the company, they pay for the Lawyer who represents them at the Supreme Court, to clear our names for the second time. The only financial assistance we receive is from the MTS [Mission to Seafarers] & Veterans aid (UK). Both organisations have assisted with food, accommodation, medical expenses/dental requirements.

Our families face financial ruin. Men have lost wives, houses have been repossessed, family members have died and one of the men is due to become a father in the next few days. This existence cannot be sustained indefinitely. Politicians on both sides should resolve their differences. It is unfortunate that normal people should suffer in this manner”.

Photo: Members of the crew of the Seaman Guard Ohio when first detained in October 2013. Little did they know they would still be stranded in India over 500 days later.

A further chronological list of how this case evolved can be seen by typing Seaman Guard Ohio into the News Search box above.