Zabolotnyi v Mateszalka District Court, Hungary

Summary:2The facts:—Mr Zabolotnyi (“the appellant”) was a Ukrainian national who had been arrested on 15 June 2017 in the United Kingdom pursuant to an accusation European Arrest Warrant (“EAW”)3 which alleged that he had applied for, and received, a fraudulent passport in Hungary.4 His extradition to Hungary was requested by the issuing judicial authority, the Mateszalka District Court, Hungary (“the respondent”). The appellant argued that he should not be extradited since there was a real risk that he would be subjected to ill-treatment contrary to Article 3 of the European Convention on Human Rights, 1950 given prison conditions in Hungary. The District Judge at Westminster Magistrates' Court was satisfied that Hungary had taken action to meet its international obligations with respect to prison conditions and ordered the appellant's extradition to Hungary on 5 September 2017. The appellant appealed against the extradition order. Following the reintroduction of the requirement of assurances in relation to prison conditions in Hungary,5 the Hungarian Ministry of Justice provided a personal assurance on 20 July 2018 to the appellant with respect to the conditions in which he would be held.6

On 16 April 2019, the Divisional Court7 refused the appellant's application to admit fresh evidence of alleged breaches of assurances given to foreign courts and dismissed his appeal. The Divisional Court found that the limited evidence relied upon did not demonstrate a systemic problem affecting assurances given to the United Kingdom generally nor that it undermined the mutual trust upon which the system of assurances was based. Taking account of all the evidence available, it was satisfied that there were no substantial grounds to believe that there was a real risk of breach of Article 3 rights during any period of detention in Hungary. The Divisional Court concluded that, even if admitted, the fresh evidence would not have afforded a ground to allow the appeal nor have been decisive. The appellant appealed pursuant to Section 32(7) of the Extradition Act 2003.8

Held:—The appeal was dismissed.

Per Lord Lloyd-Jones (with whom Lord Hamblen, Lord Legatt, Lord Burrows and Lord Stephens agreed): (1) The principle of mutual trust applied to assurances given as to the conditions in which a returned person would be held. Since the assurance given by the Hungarian Ministry of Justice was neither provided nor endorsed by the issuing judicial authority, the Supreme Court (“the Court”) was required to undertake an evaluation of the assurance, which required that the Court examine and assess all relevant evidence (paras. 31–5).

(2) Both the European Arrest Warrant scheme as developed by the case law of the Court of Justice of the European Union and the European Convention on Human Rights, 1950 as implemented by the Human Rights Act 1998, placed a duty on United Kingdom courts in certain circumstances to evaluate and test assurances given by the requesting State as to the conditions in which persons whose extradition was sought would be held. The Court was not prohibited from ruling on the reliability of an assurance given by a foreign State (para. 45).

(3) Past breaches of similar assurances by the requesting State, whether provided to the United Kingdom or to a third State, were relevant to the question whether the requesting State could be relied upon to comply with its assurance on this occasion. A State's failure to fulfil assurances in the past might be a powerful reason to disbelieve that they would be fulfilled in the future. There was no special rule of admissibility or other heightened legal test which prevented an appellant from relying on evidence of breach of assurances given to a third State. The weight to be attached to a previous breach of assurance varied from case to case according to the circumstances, including the specificity of the assurance and whether the breach was deliberate or inadvertent. It was a matter of evaluation by the Court, having regard to all the circumstances of the case and bearing in mind that cogent evidence was required to rebut the presumption of compliance (paras. 46–50).

(4) The Divisional Court was correct in the test which it had applied and its conclusion on the fresh evidence. The fresh evidence could not be considered decisive in favour of the appellant on the issue of the reliability of the assurance provided by the Hungarian Ministry of Justice (paras. 62–3).

(5) The Divisional Court was entitled to conclude that the evidence in relation to alleged breaches of assurances was not sufficiently cogent to rebut the presumption that the assurance provided by the Hungarian Ministry of Justice could be relied upon. The short-term breaches of assurances found by the Divisional Court had been remedied and apparently not repeated. The Divisional Court had correctly taken account of the clear evidence of actual improvement in the prison estate in Hungary, and particularly the reduction in the level of overcrowding in prisons. It also correctly took account of the role of the Commission for the Protection of Fundamental Rights which had power to deal with complaints (paras. 62–3).