A person resisting extradition to Hungary relied on evidence that Hungarian prison assurances given to Germany had allegedly been broken. The appeal raised two separate questions. Could evidence about promises made to another state be considered? If so, was this evidence strong enough to change the extradition decision?
The Mateszalka District Court, Hungary, sought the extradition of Oleksandr Zabolotnyi, a Ukrainian national also known as Zoltan Dani, under an accusation European Arrest Warrant. The warrant alleged that on 15 April 2015 he conspired with a public official and submitted a fraudulent passport application in the name of Zoltan Dani. He was arrested in the United Kingdom on 15 June 2017. Because of the date of arrest, the pre-withdrawal provisions of the Extradition Act 2003 and the European Arrest Warrant Framework Decision continued to apply, and Hungary remained a Category 1 territory.
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He resisted surrender on the ground that Hungarian prison conditions created a real risk of inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights, particularly through insufficient personal space. The European Court of Human Rights had identified a recurrent structural problem in Hungarian prisons and had treated three square metres per detainee in multi-occupancy accommodation as the relevant minimum, below which a weighty presumption of breach arose. Hungary had at times given assurances of adequate space and had later claimed that prison improvements made assurances unnecessary.
The extradition hearing and appeal
At the hearing on 1 September 2017, no personal assurance was offered. District Judge Snow found that remedial work, new laws and a complaints procedure had restored the presumption of article 3 compliance, that the appellant had not produced clear, compelling and cogent evidence to rebut it, and that no assurance was required. He ordered surrender under section 21A(5).
After another Divisional Court held in Fuzesi that assurances were again required, the Hungarian Ministry of Justice gave the appellant a personal assurance of at least three square metres of space in one of two named modern prisons. On appeal he sought to rely on fresh reports by Dr András Kádár, a Hungarian attorney, alleging that assurances had been breached in respect of prisoners returned from the United Kingdom and from Germany. The German assurances themselves were not in evidence and had not been seen by Dr Kádár. Hungary declined, on data-protection grounds, to confirm or deny the German allegations.
The Divisional Court considered the reports de bene esse, refused to admit them and dismissed the appeal. It accepted that proven breaches of assurances to other states might exceptionally be relevant, but said that a court should exercise very considerable caution and should consider such evidence only if satisfied that it was manifestly credible, directly relevant and of real importance. It found the German material too sparse for findings of fact, declined to seek further information, and held that the limited evidence did not show a systemic problem or a real risk that the assurance given to the United Kingdom would not be honoured.
No special rule for assurances given to other states
The High Court certified whether that cautious approach and threshold were correct. Lord Lloyd-Jones, with whom Lord Hamblen, Lord Leggatt, Lord Burrows and Lord Stephens agreed, held that they were not.
An assurance given or endorsed by the issuing judicial authority must be relied upon absent specific indications of breach. The assurance here came from the Ministry of Justice, not a judicial authority, so it had to be assessed against all the available information. Evidence that a requesting state has previously failed to honour a similar assurance is relevant to whether a later assurance can be believed. There is no principled distinction between an assurance given to the United Kingdom and one given to another state: the same state is acting in the same context. Neither the European Court of Human Rights, the Court of Justice nor domestic authority supports a special exclusionary rule or a requirement that third-state evidence first be shown to be manifestly credible, directly relevant and of real importance. Relevant and probative evidence should be admitted and then evaluated, bearing in mind that cogent evidence is required to rebut the presumption that a specific assurance will be complied with. If necessary information is missing, the court may in an appropriate case request it under article 15(2) of the Framework Decision.
Why the fresh evidence still could not succeed
That error did not mean the appeal had to be allowed. Under section 27(4) of the Extradition Act 2003, fresh evidence permits an appeal only if it would have caused the district judge to decide the question differently and to order discharge. The provision is a rule of decision, not a rule of admissibility, and the evidence must be decisive. Although the reliability of an assurance had not been a live issue at the original hearing, the German material did not meet this threshold.
The alleged German assurances were not before the court. The allegations were untested hearsay. In one case the suggested assurance concerned single occupancy rather than minimum personal space, and there was no evidence of an article 3 breach. In the other, the original assurance was unavailable and the complaints were qualified. Short-term breaches found in certain United Kingdom cases had been remedied. The court could also take account of improvements in the prison estate and of domestic supervisory arrangements. Taken alone or with the other evidence, the material was not cogent enough to rebut the presumption that the Ministry’s assurance could be relied upon, and it did not require a request for further information. Section 27(4)(b) was therefore not satisfied.
Verdict: The Supreme Court unanimously dismissed the appeal. No special admissibility test applied merely because the assurances had been given to Germany. The evidence nevertheless fell short of what section 27(4) required to overturn the extradition order, which therefore stood.
Source: Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14
