AGUSTAWESTLAND: MoD’s quiet U-TURN in Italy that left even top law officers guessing. I write.


STORY ONE – May 30, 2016

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Attorney Gian Luca Grossi who was hired by the Ministry of Defence (MoD) inside his Milan office

In June 2013, it was a hard fought victory which came against a battery of Italy’s top defence lawyers. The court granted India the position of a civil party in the corruption proceedings against the top bosses of Finmeccanica and AgustaWestland. By this, India got involved, got the right to seek damages and secured access which was unavailable till then. On April 28, this year, calling corruption as the ‘core issue’,  the Ministry of Defence (MoD) swore to ‘leave no stone unturned’ in pursuing the wrong doers.

In all of this, what the MoD did not announce or explain was its decision to quit the Italian judicial process altogether. This implies India neither remained a party nor qualified for damages.

In February 2015, India decided to not challenge a lower court order in Italy which in October 2014 declared there was no corruption in the case.

Speaking exclusively to India Today, Attorney Gian Luca Grossi, who represented the MoD at the lower court at Busto Arsizio where the trial went on from June 19 2013 to October 9 2014 said, “MoD was civil party in the trial, in the first stage in Busto Arsizio. It came in only at the end of the first trial there. Then India decided to not go ahead with the appeal. Lower court gave a clear verdict saying there was impossibility of bribery. MoD decided to quit the trial. I don’t know why, but they decided to quit. I respect that.”

When asked what did he advice the MoD, he said, “I think our advice was to stay on, stay inside also in the second degree at the Tribunale (Court of Appeal). I told them I was not confident (about their exit). It wasn’t a very easy decision but 51 per cent I would have stayed against 49 per cent to pull out. He added, “If I had the choice in my hands, I probably would’ve (stayed). When you make a choice, take a path, even if you find some problems in walking, you have to go ahead, you have to go ahead.”

In the sentence of the Milan Court of Appeals of April 7, 2016, MoD is shown as a ‘non appelante’ – a party which had not appealed. This fact was also confirmed by the prosecution there.

INDIA LOST CHANCE TO WIN ‘HUGE’ COMPENSATION

According to Attorney Grossi, who still is shown as the MoD’s attorney as per the April 7 sentence, India lost out on a chance to not just secure a moral victory by being a party when the recent order came out but also monetary compensation.

“If you want your money back, you go the civil court. If you want to secure reputation and restoration, then you go to the criminal one,” he said. In effect, India went to the criminal court and opted against going to the civil one.

What would have happened had India continued in the case?

“Our request in the trial stage was not allowed. We had asked damages but the court did not allow because the bribery angle was not proven then. So if the bribery is not proven then how can there be compensation? The tax authorities made the accused pay the difference and that was it. If we were in the case now, we would have had compensation. I do not know how much, I don’t think it was a huge one,” he replied.

Describing the hectic nature of consultations in the days prior to India’s opting out, he said, “We had a deadline to participate in the appeal. It was February 21 2015, the deadline. So we heard each other on some occasions but till the date, we did not get in.”

Former Defence Minister and senior Congress leader AK Antony had accused the present government of trying to aid Finmeccanica and AgustaWestland by allowing a backdoor entry into India markets, something the government has vehemently denied. In July 2014, the NDA had, its ministers claimed, put on hold all acquisition and procurement cases involving Finmeccanica and allied firms.

As per a statement in the Parliament by Defence Minister Manohar Parrikar, while the MoD had made an advance payment of Euro 250.32 million to AgustaWestland, only Euro 199.62 million was recovered after a deduction of Euro 50.70 million for the three helicopters India took the delivery of.

“In addition, the government also suffered an estimated loss and damages of Euro 398.21 million on account of cancellation of the contract with AgustaWestland International Limited (AWIL),” Parrikar had said.

Defence Ministry spokesperson while responding to the issue said, “We went by the advice of Solicitor General in this case and pulled out. Our goal in becoming a party in the lower court was to get access to evidence and documents. We did get that. Joining the appeal would not have yielded much. Government of India goes by Solicitor General’s advice and not by the lawyer on record.”

HERE’S WHAT ATTORNEY GROSSI SAID:

Can the MoD get into the appeal in Italy’s Supreme Court?

Till May 22, there is time to appeal and participate in the third stage of the trial. But we are not in it, the MoD is not anymore. We quit. We did not go to the second stage.

On middlemen Haschke, Gerosa and Christian Michel

Michel was slightly away from the scene when compared to Mr Haschke and Gerosa who were arrested and brought to the court. Using wiretapping technique, their roles were elaborated but not so for Michel. The public prosecutor said Haschke had applied for plea bargain. Haschke is approaching 70, he is old. When you are old and since there are multiple levels of appeals in courts, it is normal for many to admit their guilt. I can not talk more about his choice. He basically negotiated the penalty, his criminal responsibility, be it pecuniary or jail by replacing it with compensation, community work.

Did Finmeccanica and AgustsWestland also negotiate a plea bargain?

Within Italian rules, if the crime is committed in the interest of the company the company is punished. They prefer to pay the damages. They did like what Haschke did. A plea bargain is what AgustsWestland did though I do not remember how much.

It was said that India’s MoD did not cooperate with Italian judicial process. What was your experience like?

Italy has given many things to the CBI, however, the Letter Rogatory (LR) issued by the Italians was not specific. The request was vague and difficult. There are military secrets and matters of sensitive nature. If you do not know what exactly you are asking then confusion comes up. If you ask for tender documents, what all to give? When you don’t know, you ask for everything. My own experience was good. I do not know. MoD was there to defend its reputation. I have often heard this question being asked. If you have to safeguard you have to remain a party. We went to all the hearings together. Couple of people from the MoD and people from mission would sit through. Long hearings, somedays all through. I was there with people from MoD and those from the Consul General.

AS APPEARED ON INDIA TODAY:

http://indiatoday.intoday.in/story/agustawestland-govts-u-turn-in-italy/1/680910.html

 

STORY TWO – June 10, 2016

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The Ministry of Defence (MoD), after fighting hard to become a party to the Italian legal proceedings in their case against Finmeccanica and its firm AgustaWestland, quietly quit the process in February 2015. In doing so, MoD chose to not appeal against the accused and lost out an opportunity to seek monetary compensation.

While justifying the actions of the MoD, the spokesperson said it was the Attorney General (AG) who advised them in February 2015 and the ministry ‘proceeded accordingly’. The ministry had earlier said the advice to quit was given by the Solicitor General (SG). Upon asking, both these authorities denied ever giving such an advice.

The question that emanates from this is what prompted the MoD’s move to pull out?

Speaking to this correspondent in his Milan office Attorney Gian Luca Grossi who represented the MoD at the lower court at Busto Arsizio where the trial went on from June 19, 2013 to October 9, 2014 said, “MoD was civil party in the trial, in the first stage in Busto Arsizio. It came in only at the end of the first trial there. Then India decided to not go ahead with the appeal. Lower court gave a clear verdict saying there was impossibility of bribery. MoD decided to quit the trial. I don’t know why, but they decided to quit. I respect that.” When asked what did he advice the MoD, he said, “I think our advice was to stay on, stay inside also in the second degree at the Tribunale (Court of Appeal). I told them I was not confident (about their exit). It wasn’t a very easy decision but 51 per cent I would have stayed against 49 per cent to pull out. He added, “If I had the choice in my hands, I probably would’ve (stayed). When you make a choice, take a path, even if you find some problems in walking, you have to go ahead.”

In the sentence of the Milan Court of Appeals of April 7, 2016, MoD is shown as a ‘non appelante’ – a party which had not appealed.

According to Grossi, India lost out on a chance to not just secure a moral victory by being a party when the recent order came out but also monetary compensation. “If you want your money back, you go the civil court. If you want to secure reputation and restoration, then you go to the criminal one,” he said. In effect, India went to the criminal court and opted against going to the civil one.

When INDIA TODAY approached AG Rohatgi, he initially sought time to respond. Reverting at a later date Rohatgi said, “I have advised the MoD on aspects pertaining to blacklisting of various companies under the Finmeccanica umbrella but in so far as the issue you are raising, I have no recollection of having done so.”

Since in one of the responses the MoD had named the SG as the one who advised them, he too was approached. SG Ranjit Kumar too distanced himself from the issue. He said, “The matter never came to me nor have I given any advice.”

Earlier, the Defence Ministry spokesperson had stated, “Our goal in becoming a party in the lower court was to get access to evidence and documents. We did get that. Joining the appeal would not have yielded much.”

THE BLAME GAME

Former Defence Minister and senior Congress leader AK Antony had accused the present government of trying to aid Finmeccanica and AgustaWestland by allowing a backdoor entry into India markets, something the government has vehemently denied. In July 2014, the NDA had, its ministers claimed, put on hold all acquisition and procurement cases involving Finmeccanica and allied firms.

As per the recent statement in the Parliament by Defence Minister Manohar Parrikar, the MoD had made an advance payment of Euro 250.32 million to AgustaWestland, only Euro 199.62 million was recovered after a deduction of Euro 50.70 million for the three helicopters India took the delivery of. “In addition, the government also suffered an estimated loss and damages of Euro 398.21 million on account of cancellation of the contract with AgustsWestland International Limited (AWIL),” Parrikar said.

AS APPEARED ON INDIA TODAY:

http://indiatoday.intoday.in/story/exclusive-mod-quit-agusta-trial-in-italy-as-attorney-general-adviced-ag-rohatgi-differs-says-no-recollection/1/688945.html

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