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On appeal from: [2019] EWHC 934 (Admin)

For a detailed analysis of the facts and case history, please see the UKSC Blog Case Preview here.

In summary, the respondent Mateszalka District Court, Hungary, requested the extradition of the appellant, Mr Zabolotnyi, pursuant to an accusation European Arrest Warrant (“EAW”). The EAW is in the correct form and contains all necessary information. However, Mr Zabolotnyi resists extradition on the ground that there is a real risk that he would be held in prison in Hungary in conditions which amount to inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights (“ECHR”), in particular due to the lack of personal space in cells.

Mr Zabolotnyi applied for permission to rely on fresh evidence at his appeal hearing, which was not available to the District Judge at the extradition hearing. This evidence comprised reports of Dr András Kádár detailing alleged breaches of assurances given to persons extradited to Hungary, drawn from accounts given by individual prisoners after their return. Three of those prisoners had been extradited to Hungary from the UK, and two from Germany.

The issue for the Supreme Court in this appeal was whether there is a special test for admitting evidence relating to assurances given to the courts or authorities of countries other than the United Kingdom.

The Supreme Court unanimously held that there is no heightened test for the admissibility of evidence concerning alleged breaches of assurances given to a third state. However, it dismissed Mr Zabolotnyi’s appeal on the basis that the Divisional Court below was bound by section 27 of the Extradition Act 2003 (“the 2003 Act”) to uphold the District Judge’s extradition order. This is because the fresh evidence could not be considered decisive in favour of Mr Zabolotnyi, so it could not have resulted in a different outcome in this case.

Extradition between the UK and the EU member states is governed by Part 1 of the 2003 Act, which was enacted to give effect to the EU Council Framework Decision on the EAW (2002/584/JHA) (“the Framework Decision”). The 2003 Act has been amended to reflect the UK’s withdrawal from the EU. However, since Mr Zabolotnyi was arrested before the commencement of these amendments, they do not apply in his case. This appeal has therefore proceeded on the basis that Hungary is a designated Category 1 territory pursuant to section 1 of the 2003 Act.

The EAW is designed to create a simplified and accelerated procedure for extradition based on a high level of confidence between EU member states. Both the Framework Decision and the decisions of the Court of Justice of the European Union (“CJEU”) emphasise the importance of mutual trust between member states in this context. The case law of the ECtHR and the CJEU establishes that, where the state requesting extradition is a party to the ECHR and an EU member state, there is a presumption that it will comply with its human rights obligations, and that cogent evidence will be required to rebut this presumption. The same presumption of compliance applies where the issuing judicial authority provides, or at least endorses, assurances concerning the conditions in which the requested person will be detained following their extradition. However, the assurance given to Mr Zabolotnyi in this case was provided by the Hungarian Ministry of Justice. It was neither provided nor endorsed by the Mateszalka District Court, which is issuing judicial authority. In these circumstances, the court is required to evaluate the assurance, which means that it must examine and assess the available evidence relating to it.

Evidence of past non-compliance with an earlier assurance will obviously be relevant to the court’s assessment, regardless of whether the earlier assurance was given to the UK or to a third state. A state’s failure to fulfil assurances it has given in the past may be a powerful reason to disbelieve that its assurances will be fulfilled in the future. The Divisional Court was therefore wrong to adopt a heightened test for the admissibility of evidence of an alleged breach of an assurance given to a third state. Such evidence should instead be evaluated in the same way as any evidence of breach of an earlier assurance given to the UK: that is, having regard to all the circumstances of the case and bearing in mind that cogent evidence is needed to rebut the presumption of compliance.

In the present case, Mr Zabolotnyi sought to rely on fresh evidence which was not before the District Judge at the extradition hearing. His appeal was brought pursuant to section 26 of the 2003 Act, which means that the Divisional Court could only allow it if all of the conditions in section 27(4) were satisfied. The condition in section 27(4)(b) is particularly restrictive: it provides that an appeal can only be allowed if the fresh evidence would have resulted in the judge deciding the relevant question differently at the extradition hearing (The Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin)). Accordingly, while the court has a general power to admit fresh evidence as part of the inherent jurisdiction of the High Court to control its own procedure, it can only allow an appeal brought pursuant to section 26 if the fresh evidence would be decisive of an issue arising in the case.

The Divisional Court refused to admit the evidence of Dr Kádár, but considered it de bene esse (i.e. on a provisional basis). It concluded that, given the paucity of the evidence, it was not appropriate to make findings of fact in relation to the alleged breaches of assurances given to the two prisoners extradited from Germany. The Supreme Court agrees that the Divisional Court came to the only conclusion that was open to it. The fresh evidence was not sufficiently cogent to be capable of rebutting the presumption that the assurance provided to Mr Zabolotnyi by the Hungarian Ministry of Justice could be relied upon, nor did it require the Divisional Court to request further information from Hungary pursuant to article 15(2) of the Framework Decision. This means that the condition in section 27(4)(b) could not have been satisfied, so the Divisional Court was bound by section 27 of the 2003 Act to dismiss the appeal.

For judgment, please see: Judgment

For press summary, please see: Press Summary

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23 Feb 2021 Morning session Afternoon Session