RE: Request for diplomatic protection against the Republic of Albania as a result of the non-execution of the final award rendered by the ICSID arbitral Tribunal and communicated to the parties on April 24, 2019, pursuant to the ICSID Convention of 1965.

Mr. President of the Council of Ministers, Mr Minister of Foreign Affairs,

I turn to you to ask the Italian Government to intervene in diplomatic protection with respect to the Republic of Albania’s flagrant failure to comply with its obligations under the arbitral award rendered on 24 April 2019 by a tribunal constituted under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) in ICSID Case No. ARB/15/28 between Hydro S.r.l., Costruzioni S.r.l., Francesco Becchetti, Mauro De Renzis, Stefania Grigolon, and Liliana Condomitti (hereinafter the “ICSID Decision”), and the Republic of Albania.  

Under the ICSID Decision, which found Albania liable for unlawful expropriation of investments, Albania must pay to the Investors — including myself, an Italian national — significant monetary compensation. However, more than five years after the unlawful expropriation and nearly two years since the issuance of the ICSID Decision, Albania has failed to comply with its obligations under this Decision and the ICSID Convention, to which it is a Contracting State. 

Article 27(1) of the ICSID Convention, to which Italy is also a Contracting State, expressly contemplates and provides that Italy may intervene on behalf of its nationals to exercise diplomatic protection in this very situation, where the “other Contracting State [here, Albania] shall have failed to abide by and comply with the award rendered.”

I am confident that the facts and considerations that I will come to describe will lead the Italian Government to accept my request positively. I am sure that the acceptance of this request will, in turn, lead Albania to comply with the international obligations deriving from the ICSID Decision. 

I. The facts justifying the request for protection

Although the facts on which my request is based are well-known, a reference, albeit concise, to the history of my activity as an entrepreneur in Albania seems to me necessary (§ 1).  After having described in detail the factual circumstances and the conduct of the Government of Albania (§ 2) and the actions taken to protect my rights (§ 3), I will describe Albania’s serious violations of international law as held in the ICSID Decision (§ 4). The ultimate holder of the rights corresponding to the violated international obligations is the Italian Republic, by reason of citizenship and nationality, respectively, of myself and of the companies belonging to my entrepreneurial group, the material victims of the violations at issue, including the right to the execution of the ICSID award under discussion.

1. Investments in Albania

I am an Italian entrepreneur who, since the early 90s, has started a series of significant investments in Albania through various companies attributable to my entrepreneurial group. One of the earliest projects was the construction and operation of a power plant in the Kalivac squeeze on the Vjosa River. To this end, I founded BEG SpA in 1995, which in May 1997 was the first foreign company to propose and obtain a thirty-year concession from the Albanian Government for the construction and management of the plant. Under the Kalivac project , BEG entered into a partnership agreement, first, with Enel  SpA  in 1999 and, then,  in 2000  with the wholly owned subsidiary Enelpower S.pA , in which Enel had merged the company branch relating to the construction of power plants for the Enel group pursuant to D .l gs. 16 March 1999, n. 79.

Over the years, I have pursued with utmost determination and professionalism the realization of the power station, operating in the most scrupulous compliance of the applicable laws in Italy and in Albania, and of the conditions of the concession. Thanks to my commitment and my entrepreneurial skills, the Kalivac project, first in size and value among several similar initiatives subsequently authorized by the Albanian Government in the energy sector, managed to reach an advanced stage of realization, with the completion of approximately 40% of the total work and costs of tens of millions of euros. And this in spite of both countless criticalities caused by the conduct of the Enel group since the year 2000, and the geopolitical adversities caused by the global financial crisis.

From 2012, moreover, I started new and important entrepreneurial initiative in the Albanian market, which resulted, in a few months (5 April 2013), in the creation of Agon Channel, an international television production centre and a new broadcaster capable of competing, in terms of content and technologies, with the major European television operators.

Thanks to an initial investment of around 40 million euros, Agon immediately shown to become the new leading player in the Albanian radio and television market, distinguishing itself for its free information.

On 1 December 2014, as part of the project which involved the opening of channels across Europe, Agon also began to broadcast in Italy (on Channel 33 digital terrestrial) based on the format produced mostly in Albania, with the participation of many well-known faces from the Italian world of entertainment, sport and journalism.

2. The persecutory campaign of the Rama Government

A few months after the launch of the television channel − which proposed itself as an independent and free operator in a market notoriously characterized by a very high rate of politicization[1] − and coinciding with the rise to power of the Rama Government, I found myself at the hearth of a violent persecutory campaign by the Albanian authorities; once an esteemed entrepreneur with recognized merits, who had brought huge investments and hundreds of jobs to the country, I had become the target to hit and eliminate at all costs from the country's economic scene.

With the violence typical of the worst authoritarianisms, my most elementary rights and the economic interests of the companies attributable to me have been brutally crushed and annihilated. Under pressure of the Rama Government, becoming more pressing as a result of some reportage broadcasted by Agon Channel, which showed the existence of serious irregularities in the voting process on the local elections of 2015, the investigating authorities have launched a flimsy investigation against my group's business, me and some of my partners, whose sole real purpose was to set up a series of charges in order to instruct a show trial aimed at neutralizing my broadcasting project.

Thus, starting from a false accusation of money laundering in which the illicit origin of the funds used for the initial investment relating to the TV was contested - this accusation immediately fell, of course, since I myself and UniCredit have undeniably proved, through the Luxembourg authorities,  the legitimate origin of the invested money -, the Albanian judicial authorities have begun to manufacture a string of absurd crime charges, for the sole purpose of putting me out of the game and destroying  business activities not aligned with the interests of Rama and his Government.

The investigations in question culminated in the adoption, on 5 June 2015, of a remand measure in jail against me and some of my partners, as well as a number of measures of preventive seizure and freezing of bank accounts which affected several Albanian companies related to my business group, determining the immediate suspension of all activities, starting from the television ones. These seizures were also unlawfully extended to all material and equipment of the company Agonset Sh.Pk., which was in charge of managing the channel and its international production centre (i.e. the true objective of the persecution undertaken by the Albanian authorities). As a result of all these illicit conducts, which ended with the interruption of the supply of electricity, the broadcaster was forced to end its work, both in Albania and in Italy, less than three years after its launch, resulting in the termination of more than 400 employment contracts.

But what is more serious is that with the request for pre-trial detention in prison an international arrest warrant was issued - with the relative red notice -, following which the Albanian Government presented a formal request for extradition both to the Italian authorities - and after only three days they attempted to arrest me with a rare deployment of forces - and to the British authorities, that four months later ordered some measures restricting personal freedom (so-called bail) and the beginning of the extradition procedure.  

Rama had thus achieved his objective: Agon Channel had been expropriated and its owner would soon be extradited to Albania.

Indeed, in the days immediately following my arrest, the Prime Minister did not fail to publicly express, both on the media and on social networks, his satisfaction for the result obtained with the blocking of Agon Channel's assets, pointing to me, in clear disregard for presumption of innocence, as a person responsible for serious financial crimes and congratulating the "Structures of the Italian State" (this interview was given by Rama to the television program Opinion of TV Klan on 17 June 2015) for having collaborated in "blocking the source of the dirty money that feeds[ed] AgonChannel" (so we read verbatim in a post by the Albanian Prime Minister published on 9 June 2015 on Facebook and Twitter). “Structures” which, clearly, are not those foreseen by law, given that there is no trace of collaboration officially provided by the competent Italian authorities.

It is no coincidence, therefore, that all the judicial actions I took in Albania to challenge the legitimacy of the measures taken against me and my companies have proved fruitless. In fact, the massive persecutory campaign was made possible only thanks to the total, well-known enslavement of the judiciary to the Rama Government.

For all these reasons, while the Albanian authorities continued the persecutory actions with pretextual investigations and mock trials, I turned to international courts to denounce the violation of my rights and those of my companies. 

3.   Actions taken to protect my rights 

A) ICSID Tribunal

On 11 October 2014 and 17 November 2014, I sent two notice of disputes to the Government of Albania under the ICSID Convention, declaring myself available for a friendly settlement. Following the lack of response, on 10 June I started international arbitration against Albania under the ICSID Convention of 1965, denouncing multiple and serious violations of the 1991 bilateral treaty between Italy and Albania on the protection and promotion of investments and requesting precautionary measures, by reason of serious and irreparable damages arising out as a result of the execution of the arrest warrant and the continuation of the criminal proceedings.

On 3 March 2016, the ICSID arbitral tribunal, made up of eminent renowned international jurists such as Michael Pryles, Ian Glick and Charles Poncet, unanimously upheld the application for interim measures made by the applicants, ordering a State (Albania) to immediately suspend the extradition proceedings initiated before the English courts and  to suspend the criminal proceedings in the context of which the arrest  warrant was issued. The order then invited the parties to reach an agreement on the measures necessary for the preservation of the assets subject to seizure (see Hydro Ltd and others v Republic of Albania, ICSID Case no. ARB 15/28, Provisional order No. 1, 3 March 2016). However, in defiance of the order of the ICSID Tribunal and persevering in their persecutory attitude, Albania refused to comply, arguing that the Attorney General would not have had the opportunity to withdraw the request for extradition. This argument is so absurd and unfounded that, on 20 May 2016, the Westminster Magistrates' Court in London held Albania responsible for abuse of process and issued the notice of discharge from the extradition request, a decision which Albania expressly renounced to appeal.

The content of the judgment of the English Criminal Court has also been disclosed in Italy in primary national newspapers.

Subsequently, on 1 September 2016, after having ascertained that I would not be extradited, the ICSID tribunal issued a decision acknowledging the abuse of process by Albania, as ascertained by the English criminal court, and ordered the Albanian State not to take any measure to resume the extradition proceedings against me up to the adoption of the final arbitration award. 

B) European Court of Human Rights

On 21 October 2015, I also filed an application with the European Court of Human Rights, complaining the violation of the presumption of innocence guaranteed by art. 6, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ECHR), as a result of the public statement of guilt made by the Albanian Prime Minister following the arrest warrant, as well as the violation of art. 13 of the ECHR, due to the absence of any effective internal remedy.

That application (registered on 2 December 2015 with no.53488/15) was treated with extreme promptness by the European Court, which already on 12 January 2016, ordered its communication to the Albanian Government for the starting of the adversary proceedings, which was definitively concluded with the filing of replies and rejoinders on 19 October 2016. The Italian Government was invited by the European Court to intervene in the proceeding being the applicant's State of nationality, but it abstained.

The Agonset company also turned to the European Court of Human Rights, with an application of 27 May 2015 (registered on 27 June 2015 with no. 33104/15) to complain about the violation of the right to freedom of expression, guaranteed by art. 10 of the ECHR, and of the right to respect for property, protected by art. 1 of Protocol No.1 to the ECHR.

By decision of 28 August 2015, the Court accepted the request for priority treatment of the appeal, which was, therefore, communicated to the Albanian Government on 5 November 2015 for starting the adversary proceedings, which ended with the filing of replies and rejoinders on 22 September 2016.

The European Court's decisions on both applications are expected in the coming months.

C) Interpol

Finally, even Interpol upheld my complaint against the Red Notice issued at the request of the Albanian authorities.

On 25 January 2017, the Commission for the control of INTERPOL’s files, noting that in the face of my substantiated allegations Albania had not been able to provide any justification of the arrest warrant, thus confirming the persecutory nature of the measures adopted, recommended the cancellation of the data concerning me from the archive, believing that the retention of such data would be in breach of the constitutional rules of operation of Interpol.

Following this recommendation, the Secretary General of Interpol ordered the cancellation of the Red Notice against me and also informed all States Parties to Interpol that any further form of international police cooperation with Albania would be considered contrary to the Constitution and to the Organization's Data Processing Rules.

Even the Italian authorities, which in June 2015 had tried to carry out my arrest in the absence of the legal conditions established by the Italian law and with unusual diligence on the basis of the request made by Albania, had to take note of this decision by Interpol and have, at my request, confirmed the cancellation of my name from the list of wanted persons.

4. The Award of the ICSID arbitral tribunal

On 18 April 2019, the ICSID arbitral Tribunal unanimously issued the Award, which held that the actions of the Albanian authorities against the undersigned and its investments constituted unlawful expropriation in violation of international law as well as "the culmination of a political campaign against the applicants" aimed at silencing a television channel critical of the Albanian Government. For this reason, the ICSID arbitral Tribunal sentenced the Albanian Republic to compensate the undersigned and the other Italian investors the sum of over € 110,000,000.00. In particular, the arbitrators in that decision reached the following conclusion:

"724. When taken together, all of the matters discussed in paragraphs 708 to 719 above therefore strongly support an inference that the Seizure Decisions were the culmination of a political campaign against the Claimants.

a. The criminal investigations were commenced by a government that was close to the Claimants’ commercial competitors, incumbent operators of television stations, against a channel that was critical of the government.

b. At the outset of those investigations, a representative of the government explicitly stated that Mr. Becchetti should speak with one of those competitors if he wished to understand why the Claimants’ investments were under investigation, and that it was not a good idea to oppose the state.

c. There were significant flaws in the factual basis for the allegations that underpin the criminal investigation. When called to justify the allegations that underpinned the Arrest Warrants by INTERPOL, Albania failed to do so.

d. Once the Seizure Decisions were issued, Prime Minister Rama stated his "war" against investors such as the Claimants had been a "success", and went on to threaten the judiciary on the basis that it was somehow implicated in the supposed wrongs by those investors.

725. Unlike the conduct of which the Claimants complained in relation to the Kalivaç Project, the Tribunal finds that these activities were deliberate interference with Agonset’s business and motivated by Agonset’s criticism of government. The Tribunal therefore draws that inference for which the Claimants contend, and finds that Albania’s taking of Agonset was not a legitimate exercise of its police powers. As such, Mr. De Renzis’, Mr. Becchetti’s, Ms. Grigolon’s and Hydro’s investment in Agonset was expropriated in breach of Article 5 of the Treaty.

[...] "

In paragraph 724, letters (a) and (b), the ICSID Tribunal has thus concluded that the criminal investigations had been initiated under pressure from a partisan government, both because the Rama Government was close to the interests of other television broadcasters, competitors of Agonset , and for the obvious aversion of the Government to the criticisms by Agonset. The ICSID decision states the following:

"708. Nevertheless, the Rama government was closely associated with the incumbent operators, Agonset’s commercial competitors. Former employees of those incumbents were employed by the government in key positions. In particular, the Rama government installed a former senior executive at one of the incumbents as President of AMA.  It did so by using his numbers in parliament to override the statutory requirement that the opposition party participate in the selection process. The President who was replaced as a result had been the subject of a sustained campaign on the part of the incumbent TV operators for her removal.

[...]

712. Of more direct significance is the first matter identified by the Claimants, the explicit statements made by the government representatives concerning the motives for the criminal investigations. In late 2013 or early 2014, shortly after the money laundering allegations were first raised against the Claimants, Mr. Becchetti asked the Secretary General of Prime Minister Rama’s cabinet, Mr. Agaçı, why those investigations were being pursued. Mr. Agaçi said Mr. Becchetti should speak to Enkelejd Joti, General Manager of Top Channel, one of Agonset's incumbent competitors. When Mr. Becchetti asked why he should speak to Mr. Joti, Mr. Agaçi said: "It is not a good idea to oppose the State."

[...] "

Paragraph 724 (c) of the ICSID Decision deals with the "material defects" of the factual basis of the allegations in the criminal proceedings. The analysis of these substantive defects is particularly developed in paragraphs 716-719 of the ICSID awards, which reads as follows:

716. The Claimants also point out that key allegations justifying the Arrest Warrants and the Seizure Decisions have the following significant flaws:

a. The allegation that the companies were laundering overseas funds is undercut by documents provided to the prosecutor before the criminal charges were formally brought, showing a legitimate source of the funds.

b. It was also alleged that invoices were sent in relations to works that were not done, namely "foundation work on the material that was selected and dug out for the construction of the body of the dam". Reports from the relevant government agency from different years indicated that the work was been completed, however.

c. As to the allegation that Energji overcharged for works, further available to prosecutor showed that Albania had approved the rate charged to it in the Second Addendum of the Concession Agreement. They also showed that Deutsche Bank had approved the rate at which KGE’s contract with Energji set the works.

717. Under Albanian law, all that is required for an arrest warrant to be issued is a reasonable basis to suspect a crime has been committed. For a range of detailed reasons, set out in its final submissions, the Respondent contends that such reasonable basis existed despite the flaws identified by the Claimants in the basis for the criminal investigation.

718. Although this may well demonstrate that the Arrest warrant had a sufficient basis under Albanian law, this is not the end of the matter. As noted, the question is whether, in substance, the Claimants can show that Albania's actions were motivated by a political campaign against them. Even if it is accepted that there was a reasonable basis for suspicion concerning the allegations that formed the basis of the criminal investigation, the factual flaws the Claimant identify provide further basis for an inference that Albania’s motivations were not bona fide in the public interest.

719. At around the time the Arrest Warrants were issued, INTERPOL issued the "Red Notices" at Albania’s request in relation to Mr. Becchetti and Mr. De Renzis. In 2016, INTERPOL repeatedly asked Albania to justify those notices in response to allegations that they were politically motivated, lacked a proper purpose and lacked a proper evidentiary basis. Receiving no adequate response, INTERPOL withdrew the Red Notices in 2017.

In paragraph 724 (d) the arbitral tribunal observed that the Albanian Prime Minister, once seized the assets of companies related to me, said that his "war" against investors had been carried out with "success":

“713. In June 2015, immediately following the Seizure Decisions (taken in part on the basis of the money laundering allegations), Prime Minister Rama explicitly stated that he considered the government to be at "war" with certain investors, including the Claimants, and that the war had been successful. He went on to say that the executive government "will shake the foundations of the judicial system" in a way that those judges who had “become part of the crime cannot even imagine." 

[...]

715. It is certainly true that Prime Minister Rama states he has nothing against Mr. Becchetti. However, in the context of the matters set out in the preceding paragraphs, the Prime Minister's comments are best read as indicating a political campaign against, at least, "that kind of investor", of which Mr. Becchetti was one. This reading is further supported by the weaknesses identified in the money laundering allegations described in the following paragraphs."

The substantial defects relating to the facts at the basis of the criminal investigation identified the by Claimants and confirmed by the ICSID Tribunal (see para. 716 of the ICSID Decision) cannot but lead to the conclusion that the criminal proceedings had not been carried out in good faith and in the public interest. As indicated in paragraph 724, letter (c) of the same ICSID Decision:

"... c. There were significant flaws in the factual basis for the allegations that underpin the criminal investigations. When called upon to justify the allegations that underpinned the Arrest Warrants by INTERPOL, Albania failed to do so”.

II. On the citizen’s right to obtain diplomatic protection from his own State of citizenship in case of serious violations of fundamental rights by a foreign State

In addition to humanitarian reasons that would require to any government to act immediately in protection of a citizen who has suffered, and continues to suffer, violations of fundamental human rights of this magnitude, there are also legal reasons connected to the institution of diplomatic protection that make  such an intervention unavoidable in my case. It can be said that, in my case, the Italian Government has a real obligation to take action so that Albania starts respecting my fundamental rights and obligations under the treaties.

This duty is imposed by international law (§ 1), as confirmed by the case law of various courts, including national ones (§ 2), and by the same Italian practice concerning diplomatic protection of investors abroad, especially in case of ascertained violations of obligations stemming from the ICSID Convention (§ 3 ), and by the law of the European Union as well (§ 4). 

1. On the notion of diplomatic protection in general international law

Dating International scholarship believed that the diplomatic protection constituted a political act, a right of the State free of any constraint, exerted to the sole end to protect its interests and not those of its individual nationals.

This approach was grounded on the lack of International legal subjectivity of individuals and established that, to have international relevance, the individual interest was always to be attributable to that State.

The most recent scholarship and case-law, instead, have recognized, also in the light of the evolution of state practice on the matter, that the individual can be the autonomous holder of rights stemming from international norms (see, for all, the judgment of the International Court of Justice of 27 June 2001 in the case LaGrand (Germany v. United States of America), particularly paragraphs 42 and 78) , leading to a radical evolution of the diplomatic protection. In particular, in cases where serious violations of human rights are committed - as in the case at hand - there is a right of the citizen to be protected from their State and a corresponding obligation on the State to act by way of the lawful means at its disposal.

The decisive factor for the purpose of proper reconstruction of the diplomatic protection and of the limits to the States’ freedom in granting it is the definition that Italy has suggested to the Sixth Commission of the General Assembly of the United Nations in the context of the observations to the Draft Articles on Diplomatic Protection of the International law Commission ("ILC") ( see UN Doc. A/CN.4/561/Add.2, 12 April 2006, p. 37, § 1). On that occasion, Italy strongly recommended a more explicit language in the codification of the international relevance of fundamental individual rights, now peacefully recognised under customary law, as noted by the International Court of Justice. The Italian Government underlined that in the light of established international case-law (in particular, the judgments of the International Court of Justice in cases LaGrand and Avena and others ) and national case-law, the interpretation according to which, in the exercise of diplomatic protection, the State acts merely to protect its own right is finally overcome, since "the violation of international law rules on the treatment of foreigners integrates both a violation of state sovereignty and a violation of individual rights" ( Ibidem ) .

Furthermore, the Italian Government itself has recognized that the rule according to which diplomatic protection is a totally discretionary power necessarily suffers the limits of the Constitutional Charter, as diplomatic protection is a duty in the event of serious human rights violations (see First report on diplomatic protection by J. Dugard , UN Doc. A/CN.4/506, § 80).

Finally, the Italian Government has argued that the discretionary power of the state of citizenship in deciding on the intervention in diplomatic protection ceases when serious violations of human rights are at stake. In these cases, such intervention is required, and all States have to provide domestic remedies to implement the individual right to diplomatic protection before the domestic competent courts or other independent national bodies (see. ILC, Comments and observations received from Governments, UN Doc. A/CN.4/561, 2006, p. 38)

The approach indicated by Italy was incorporated in art. 19 of the Draft Articles on Diplomatic Protection of the ILC, entitled 'Recommended Practice', which establishes the criteria of conduct to which States must comply with in the exercise of diplomatic protection. Lett. a) of art. 19 states that: "a State (...) should give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred". The official comment on the article underlines the growing consensus expressed in several decisions of national and international courts in the sense of considering the exercise of diplomatic protection as an obligation in the event of violation of fundamental human rights. In these circumstances, the comment states: “international law already recognizes the existence of some obligation on the part of a State to consider the possibility of exercising diplomatic protection on behalf of a national who has suffered significant injury abroad. If customary international law has not yet reached this stage of development then draft article 19, subparagraph (a), must be seen as an exercise in progressive development" (see Draft Articles on Diplomatic Protection with commentaries adopted by the International Law Commission at its fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/ 61/10), YBILC, 2006, vol. II, Part Two, p. 54, para. 3). The commentary also refers to the judgment of the South African Constitutional Court in the case Kaunda (Kaunda and others v President of the Republic of South Africa and others, 19 and 20 June and 4 August 2004) in which the Court established that, in case of an infringement of fundamental rights committed by a State "a request for diplomatic protection that provides clear evidence of abuse would be difficult, if not impossible, to refuse. It is highly unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable and a court would order the government to take appropriate action."

2. The decisions of national and international courts on the exercise of diplomatic protection in the event of serious violations of fundamental rights

Since the early 1980s, the case law of various national courts has recognized the existence of a duty of the State to act in diplomatic protection of its citizens in the event of violation of constitutional guarantees or international norms for the protection of fundamental rights of human persons.

It is precisely in the wake of these decisions that Italy and delegations from many other countries have formulated the above observations to the United Nations, which led to the inclusion of Article 19 in the Draft articles on diplomatic protection.

Among the most relevant cases in the international practice regarding the exercise of diplomatic protection in the event of serious violations of human rights, the following can be mentioned.

A) Case Rudolph Hess decided by the German Federal Court by judgment of 16 December 1980

Among the first decisions that dealt with the problem under examination, it is necessary to recall the judgement of the German Federal Constitutional Court of 16 December 1980, in the well-known Hess case, where the Court, despite the absence of an express constitutional provision that obliged the state authorities to intervene in diplomatic protection, preliminarily noted that “agencies of the Federal Republic […] are constitutionally obliged to a duty to protect German nationals and their interests against foreign States”.

Moreover, the Court, while acknowledging that the federal government enjoys "broad discretion in respect of the question whether and in what way it guarantees protection against foreign countries", ruled that national authorities must still comply with the criteria of reasonableness and non-arbitrariness when dealing with diplomatic protection, noting in particular that “the administrative courts have consequently confined themselves to testing the Federal Government’s acts and omissions for errors of discretion”.

B) Case HMHK versus Netherlands, decided by the Court of Appeal of The Hague by judgment of 22 November 1984

The issue of the obligation to provide diplomatic protection was also addressed by the Court of Appeal of The Hague, by judgment of the 22 November 1984. Having held in particular that "under Dutch law [...] to the State can be required to provide diplomatic protection", the Court noted that judicial review on the exercise of this discretionary power, owed by the government on the subject of diplomatic protection, is aimed at ascertaining "if assistance was provided to significantly lower intensity than that which could reasonably be expected from the Dutch government and its representative bodies".

C) Case N. et Consorts versus Confédération Suisse decided by the Swiss Federal Court by judgment of 6 October 1995

The Swiss Federal Court, in its judgment of 6 October 1995, has broadly interpreted art. 45 bis, paragraph 1, of the Swiss Constitution, establishing that the necessary margin of appreciation enjoyed by the Confederation concerning the granting of diplomatic protection to its citizens “certainly does not mean that it can act arbitrarily in this area”. With specific regard to the examination of the diplomatic protection measures actually adopted, it was established that "from the moment in which the Confederation agrees to intervene, even in a mild way, it must never act in a way that would harm the interests of the Swiss citizens involved". In such circumstances, the judgement states, the Confederation's liability towards citizens harmed by the conduct is not excluded. This judgment recognizes that the conduct of the State in diplomatic protection cannot be purely formal, because that would worsen in substance the position of the citizens for whom the protection is intended.

D) Case Abbasi decided by the Court of Appeal of London by judgment of 6 November 2002

Further elements in favour of the thesis of the limitation of state "discretion" in matters of diplomatic protection can be inferred from the decision of the English Court of Appeal in the Abbasi case. The judgment in question has, in fact, interesting new profiles, both in terms of qualification of the legal status of the individual who benefits from diplomatic protection, and of the need of the national State to evaluate the nature and seriousness of the violation committed against its citizens when deciding to act at a diplomatic level.

With regard to the first issue, the Court stated that "every citizen that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate". While acknowledging the "limited nature of the expectation" and also admitting that the decision on “whether to make any representations in a particular case, and if so in what for, is left entirely to the discretion of the Secretary of State", the Court nevertheless observed, accepting the thesis of a limited judicial review of the state decision, that this "does not mean the whole process is immune from judicial scrutiny. The citizen’s legitimate expectation is that his request will be ‘considered’, and that in that consideration all relevant factors will be thrown into the balance”.

Regarding the second aspect mentioned above, concerning the effect of the type of violation suffered by the citizens on the decision to intervene in diplomatic protection, the Court found that, among the items that need to be taken into account by state authorities a factor of vital importance “is the nature and extent of the injustice" specifying, on the one hand, that "even where there has been a gross miscarriage of justice, there may perhaps be overriding reasons of foreign policy which may lead the Secretary of State to decline to intervene”, but added, on the other hand, that "until it has formed some judgment as to the gravity of the miscarriage, it is impossible for that balance to be properly conducted. "

Consistently with these guidelines, on 7 March of this year the United Kingdom has granted diplomatic protection to the citizen Nazanin Zaghari. The British foreign minister specified that the intervention is motivated by Iran's failure to comply with primary obligations deriving from international law, including the violation of the right to due process.

E) Case Groupment X versus Conseil féderal decided by the Swiss Federal Court by judgment of 2 July 2004

Finally, of particular interest in the domestic case law on diplomatic protection is the judgment rendered on 2 July 2004 by the Swiss Federal Court in the Groupement X case.

The ruling regards the appeal by a Swiss company for annulment of the decision of the Federal Council refusal to provide diplomatic protection in a dispute relating to the application of a contract concluded between that company and the European Organization for nuclear research (CERN). The object of this important decision is that of the application of treaty provisions on the protection of human rights, in particular art. 6 ECHR (right to a fair trial), in case of non-exercise of diplomatic protection by the national State. The Swiss federal court found that art. 6 of the ECHR imposes an interpretation of constitutional rules in the sense that the right of access to an impartial and independent tribunal must also be respected in the field of control over the government's decision to act ( or not ) in diplomatic protection.

3. The Italian practice regarding diplomatic protection of investors abroad and the violation by Albania of its obligations under the ICSID Convention

The obligation to act in diplomatic protection is also corroborated by the practice followed by the Italian government in all cases where there have been conducts in violation of bilateral investments treaties carried out by foreign States to the detriment of Italian investors.

In this regard, it is worth recalling two recent cases in which Italy has moved with the utmost care to protect its citizens:

• In May 2003, as a result of the arbitration dispute arisen between 16 Italian investors operating in various sectors (including the pharmaceutical, tourism and food) and Cuba – a dispute in which investors complained that they have suffered a series of significant prejudice in consequence of the breach of the 1993 Italy-Cuba bilateral treaty  - , the Italian Government, taking the side of its citizens, has started an arbitration between States against Cuba. In addition, of all the requests presented by Italy in the arbitration proceeding, not even one was aimed at directly protecting its interests. The only direct compensation requested by Italy from Cuba, which did not protect its investors, was the symbolic sum of 1 euro. This is clear evidence that Italy submitted its application only in order not to leave room to any unfounded and spurious objections that the Cuban State could have raised on the basis of the ancient idea that diplomatic protection is a power to protect interests attributable to the State. Thus, with the symbolic request of 1 euro, Italy has also affirmed that diplomatic protection is for the protection of the interests of individuals.          

• Subsequently, in 2007, following the entry into force in South Africa of a law on natural resources that could have prejudiced Italian investors in the sector, the Italian Government intervened with diligence in diplomatic protection even in advance , namely before any dispute was concretely arisen between its investors and the South African State.

I also understand that Italy has intervened several times to protect Italian investors who complained of having suffered violations of their rights in Albania, for example in relation to the revocation without compensation of the concessions for the use of land in favor of mixed capital joint ventures in the agricultural sector, making formal protests, supporting the requests of its citizens, promoting an amicable solution to disputes with the competent authorities and actively participating in the meetings of the bodies set up for this purpose.

The cases mentioned above attest that to date the Italian Government did somethings to protect the interests of its investors in circumstances much less serious than mine.

Not only, in fact, in my case the unlawful conducts undertaken by the government of a foreign State have been established by a judgment of an ICSID tribunal – a decision which under art. 54 of the ICSID Convention, of which Italy and Albania are parties, has the same validity as a domestic ruling that has become res judicata -, but the harm suffered has also integrated the violation of fundamental human rights . The ICSID decision establishes, in fact, that an Italian investor and his partners have been the target of a political campaign by a foreign government through its own judicial and police bodies in violation of international law. This campaign is still ongoing.

Moreover, the illegal conduct put in place by Albania is today further aggravated by the non-fulfilment of the ICSID award, an obligation established by art. 53(1) of the ICSID Convention. In fact, on the one hand, Albania is still , after almost two years from the issuance of the award ,  refusing to compensate the investors of the huge damages suffered in compliance with the arbitral award; on the other hand, Albania refuses to execute the award in its own legal system as provided for by the ICSID Convention, having denied, on 4 March 2020, the request implementation and execution of the award by an arbitrary, unreasonable, and grossly unfair decision contrary to Albania’s obligations under the ICSID Convention and Albanian law. 

Albania’s refusal to comply with and enforce the ICSID Decision constitutes an ongoing violation of international law, which justifies urgent action by the Italian Government in diplomatic protection. Italy’s exercise of diplomatic protection here is expressly allowed by Article 27(1) of the ICSID Convention, which provides: “No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute.”

Moreover, the attitude that Albania has shown towards the facts definitively ascertained in the ICSID procedure reflects that adopted in the proceedings carried by the Albanian criminal courts against me, where the same overwhelming evidence (witness and documentary) and the admissions of the Government that lead to the conclusion of the ICSID tribunal regarding the political nature of illicit conduct were inexplicably ignored .

Until Albania will not give execution to the ICSID Decision and dismiss the pending charges against me - for six years a measure on remand in custody has being hanging over me! - the risk of incurring new abusive restrictions of personal freedom is still and always will be relevant to me . To date, nearly two years since the Award was rendered, Albania has still not withdrawn the arrest warrant against me and there is a possibility that I will have to defend myself against new extradition procedures.

The danger is made more serious by the current dramatic state of crisis of the Albanian judicial system, as recently recognized by the European Commission for Democracy through Law (the so-called Venice Commission, an advisory body of the Council of Europe), which, in relation to the recent reform of justice, has noted: (i) an opaque functioning of the body responsible for purge and (ii) a state of total paralysis of the activity of the Constitutional Court and the Supreme Court since more than three years.[2]

These considerations highlight the fact that, by refusing to comply with the ICSID award, and keeping an arrest warrant against me for more than six years, Albania is persevering in its persecutory behaviour towards me. 

The obligation of the Italian Government to act in diplomatic protection in my case is perfectly in line with the customary rule of art. 19 of the above-mentioned Draft Articles on Diplomatic Protection of 2006, which requires the intervention of the State in case of violation of fundamental human rights.

It must be recalled that, in acceptance of the recommendation of art. 19 of the aforementioned Draft Articles, to protecting individuals in the event of significant violations of human rights, the Court of Cassation, United Sections, has determined that the feedback of the Government on the measures to be taken in response to  violations of human rights must respect the characters of reasonableness, non-arbitrariness and proportionality (Cass. , Sez. Un, 19 October 2011, n. 21581).

As part of an exercise of diplomatic protection based on the principles of reasonableness and proportionality, as well as on equal treatment of equal situations, according to which Italy would be required to act consistently with the measures taken in other circumstances, it is relevant, once again, the practice adopted by Italy in the two cases mentioned above ( see the case of interstate arbitration with Cuba and the preventive diplomatic protection of investors in South Africa ): the comparison of the case in question with the previous two would make the denial of diplomatic protection an act against my person. Moreover, any unequal treatment of equal situations would constitute a violation of constitutional importance, particularly with regard to Article 3 of the Constitution, which enshrines the principle of equality.

Finally, in evaluating the actions to take in response to a diplomatic protection required by its own citizens, the Italian Government must abide by the  European Union law and align its actions to the practice adopted by the Member States and by the European Union in similar cases.

4. Diplomatic protection in investment matters under European Union law.

The rules laid down by the European Union law confirms the existence of an obligation to act in protection of the investments made by European operators in third countries.

The Treaty on the Functioning of the EU (TFEU) set, among the objectives for the consolidation of the common commercial policy, the assignment of the field of foreign direct investment to the competence of the Union (art. 3, para. 1, letter e), and art. 207, par. 1).

Concrete and important evidence of this strong and unequivocal direction are the initiatives taken by the Union in the case involving the Spanish energy company Repsol and the Argentine Republic in which the South American State, failing to fulfil the obligations arising from bilateral investment treaties, perpetrated expropriation conducts against European company. On that occasion, the European Union ( in the person of the Commissioner for Trade Karel De Gucht ) gave reasons for its intervention in support of the actions taken by the Spanish authorities, clarifying that the call to all Member States to impose sanctions against Argentina “will grant legal security to existing bilateral investment treaties concluded between our Member States and non-EU countries, as the EU is moving to replace them over time by EU-wide investments deals. This will protect EU investments abroad and allow investors legal channels to defend themselves when needed. […] It’s my ambition that, with time, all European investor has an equal protection of his interest abroad which, for the moment, is only sometimes assured to investors from a limited number of Member States”.

It is evident, therefore, that European Union law, in cases of request of diplomatic protection for violation of investment treaties where evidence are given of serious illegal conduct on the part of the third State, requires each Member State to respond to the requests for protection of its own citizen and to implement effective measures to protect the investor and the entire Union, ensuring the coercion of international obligations violated by third States. To this obligation it must be added, of course, that of informing the European institutions of the request for protection, as Spain did promptly in the Repsol case- in which a final award of the ICSID did not even existed, as in this case.

If Italy does not take the necessary measures to protect my person and, at the same time, continues to support Albania in its application to join the European Union, it would place itself on the margins of the decision-making process of the Union that, at present, rightly denies Premier Rama's Albania the possibility of opening accession negotiations.

Finally, again with regard to the duty to take action in diplomatic protection stemming from Italy being a party to the European Union and European Union law being above internal sources, it should be noted that any possible denial would violate the fundamental principles of the founding Treaties. In fact, an arbitrary conduct in the choice of whether or not to grant diplomatic protection also represents a violation of the rules of the single market, as its free competition would be altered by the mere fact that Italian investors - and in particular myself - would be penalized vis-à-vis other European investors to whom, as mentioned, protection is guaranteed both under the domestic law of Member States and under supranational law.

III. Conclusions

Based on the foregoing consideration, the diplomatic protection requested should be necessarily granted. The ICSID Tribunal has, indeed, found Albania’s violation of international law in its politically motivated campaign against me and my partners. Despite the binding nature of the ICSID Decision, Albania has refused to comply with its obligations under the the ICSID Convention. This conduct constitutes, as mentioned, a significant violation at an international level and in violation of the most basic human rights.

Among the constitutional rights the violation of which I have suffered there is, first, the right to personal freedom under art .13 of our Constitution. In fact, for six years I find myself unable to leave the only country that has proved impartial and fair towards me and which - compatibly with my status as a foreign citizen - has protected and saved me from a dramatic fate.

The failure to intervene in diplomatic protection would force me to continue to live in London after six years in lockdown, in order to avoid the risk of being unjustly arrested in any part of the world where I can find myself and to defend myself from an unjust remand on custody order still effective, issued for crimes clearly never committed and contested in a show trial by the courts of a State which for nearly a decade has known no justice and democracy .

In the second place, the additional constitutional right the violation of which I have suffered of is, clearly, the " right to express freely their own thought by word, writing or any other means of communication", referred to in art. 21 of the Constitution. The facts set out show, in fact, that the Albanian government operated for the sole purpose of gagging Agon Channel, one of the few free voices in that country. In confirmation of the findings of the ICSID Tribunal, on 19 June 2020 the Venice Commission issued a report on the situation of the media in Albania, in which it noted the lack of press freedom (see Venice Commission, Opinion on Draft amendments to Law No. 97/2013 on the audiovisional media service, 19 June 2020, para. 17).

Finally, it was clearly violated  my right to freedom of economic activity and the enjoyment of property provided for by art. 41 and art. 42 of the Constitution, as well as the right to enjoy the protection of Italian work abroad, pursuant to art. 35, paragraph 3, of the Constitution. The Albanian Government has in fact expropriated all my assets in Albania and has cleared all the investments I made in that country. All this against any principle of law and for the sole purpose of fighting what was mistakenly perceived as a political opponent.

The final decision of the ICSID represents a very important element of evolution of the circumstances, which is perfectly in line with the precedent set out by the United Sections of the Court of Cassation in judgment no. 21581/2011. In fact, it is now ascertained that the conduct of the Albanian governmental authorities and judiciary has repeatedly and wilfully violated the fundamental human rights of an Italian and European citizen; as well as it is now ascertained that the Albanian government is violating art. 53 (1) of the ICSID Convention by refusing to implement the arbitral decision.

These circumstances limit the discretion of the Italian Government in considering my request for diplomatic protection and obliges the Government not only to take it seriously into consideration but also to grant it in order to ensure compliance with the obligations deriving from the ICSID Convention, of which Italy is part. 

In other words, it can no longer be said that the granting of diplomatic protection is a "free political act because it can be traced back to supreme choices regarding the constitution, safeguarding and functioning of public powers", given that the ICSID Convention imposes on all States parties the observance of the decisions of the arbitral tribunals expressly contemplating, in art. 27 (1), the action in diplomatic protection of the investor's state of nationality in the event of non-compliance and non-execution of the arbitration award . 

Faced with such a factual and legal framework, therefore, it is not clear how the Italian Government could deny my request for diplomatic protection.

Nor a possible refusal could be motivated by referring to a hypothetical state interest aimed at not compromising relations with other states, since in this case it is well-known that Albania is heavily dependent economically and politically from the Italian one. On this point it is worth recalling one of the many decisions in which international courts have held that the assessment of whether or not to act in diplomatic protection must also have regard to the specific political and economic relationship existing between the two states in question (see Banro American Resources Inc. And Société Aurifère du Kivu et du Maniema SARL v. Democratic Republic of Congo, ICSID case n. ARB/98/7, Award, 1 September 2000). If the Italian Government were not really able to take action to protect one of its nationals against the Albanian government, it is hard to imagine in which other case and against which other country diplomatic protection could be granted.

It should be recalled that, even if, for the sake of argument, the Italian Government should decide not to grant the requested diplomatic protection, it is clear that an explicit and motivated response to my request, explaining the reasons (obviously non-existent) for the decision not to act for my protection would be mandatory. 

It must be clear, in fact, for myself and for all public opinion the possible reasons why the Italian Government would refuse to protect an Italian citizen subjected to unjust persecution.

In view of the above, I ask your honorable sirs to intervene in diplomatic protection of my person so that Albania will stop the persecution against me and will give full effect to the ICSID Decision, also providing for the payment of the compensation due under the same.

Looking forward to your response, which I am sure will come quickly, I extend my regards.

In faith,