Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14

Ukrainian national resisted extradition to Hungary under a European Arrest Warrant, arguing risk of inhuman treatment in Hungarian prisons. The Supreme Court held that evidence of breaches of assurances given to third states is admissible when assessing reliability of diplomatic assurances, but dismissed the appeal as the fresh evidence was insufficient to rebut the presumption of compliance.

Facts

The appellant, Oleksandr Zabolotnyi, a Ukrainian national, was sought for extradition to Hungary pursuant to an accusation European Arrest Warrant (EAW) relating to alleged passport fraud in 2015. He resisted extradition on the ground that there was a real risk he would be held in Hungarian prison conditions violating Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhuman or degrading treatment.

Following the European Court of Human Rights’ pilot judgment in Varga v Hungary (2015), which identified systemic problems with prison overcrowding in Hungary, the Hungarian Ministry of Justice provided assurances that extradited persons would be guaranteed at least 3 square metres of personal space. The appellant sought to rely on fresh evidence from Dr András Kádár’s reports suggesting breaches of similar assurances given to both the United Kingdom and Germany in respect of other extradited individuals.

Issues

Principal Legal Question

The certified question was whether, when assessing an assurance given to the United Kingdom relevant to extradition, a court should exercise ‘very considerable caution’ before admitting evidence relating to alleged breaches of assurances given to other EU member states, and whether such evidence must be ‘manifestly credible, directly relevant and of real importance’.

Subsidiary Issues

Whether the fresh evidence concerning alleged breaches of assurances provided to Germany should be admitted under section 27 of the Extradition Act 2003, and whether such evidence would be decisive in determining the reliability of assurances given to the United Kingdom.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Lloyd-Jones, delivering the judgment with which the other Justices agreed, held that the Divisional Court had erred in principle by suggesting a heightened test of admissibility for evidence concerning breaches of assurances given to third states.

“I am unable to accept that a sound distinction can be drawn in this regard between breach of a prior assurance given to the United Kingdom and breach of a prior assurance given to a third state. On the contrary, the fact of a prior breach of such an assurance, if established, is clearly relevant regardless of the identity of the state to which it was provided.”

Lord Lloyd-Jones stated:

“The approach of the Divisional Court (at para 44) which requires that it be satisfied that the evidence is manifestly credible, directly relevant and of real importance is wrong in principle. Such evidence should be approached on the same basis as any other evidence of breach of such undertakings by the requesting state.”

However, the Court held that despite this error, the Divisional Court had correctly applied section 27(4) of the Extradition Act 2003 and reached the only conclusion open to it. The fresh evidence was not sufficiently cogent to rebut the presumption that Hungary would comply with its assurances because:

• The actual assurances given to Germany were not in evidence
• The allegations were hearsay whose reliability could not be tested
• Evidence showed actual improvements in Hungarian prison conditions
• Short-term breaches in UK cases had been remedied

Implications

This case clarifies an important principle in extradition law: evidence of a requesting state’s breach of assurances given to third states is admissible and relevant when assessing the reliability of assurances given to the United Kingdom. There is no special heightened threshold for admissibility of such evidence.

The judgment also confirms that where assurances are given by non-judicial authorities (such as a Ministry of Justice rather than a court), they must be evaluated through an overall assessment of all available information, rather than enjoying the enhanced presumption of reliability afforded to assurances given or endorsed by judicial authorities.

The case reaffirms the principle of mutual trust underlying the EAW system while recognising that cogent evidence can rebut the presumption that EU member states will comply with fundamental rights obligations. The decision provides important guidance on the application of section 27 of the Extradition Act 2003 regarding fresh evidence on appeal.

Verdict: Appeal dismissed. The Supreme Court held that while the Divisional Court erred in applying a heightened admissibility test for evidence of breaches of assurances given to third states, the fresh evidence was nevertheless insufficient to rebut the presumption that Hungary would comply with its assurances, and therefore the conditions in section 27(4) of the Extradition Act 2003 for allowing the appeal were not satisfied.

Source: Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14