Fuzesi & Anor v Budapest-Capital Regional Court, Hungary

In extradition cases involving a recognised systemic risk of treatment contrary to Article 3 of the European Convention on Human Rights, a solemn individual assurance may dispel the risk even if it does not identify the receiving prison. The court must assess the assurance’s strength and scope, together with evidence bearing on the receiving state’s ability and willingness to honour it. Evidence of general prison shortcomings does not necessarily establish that an individual assurance will be breached. A prison-specific assurance may be required where the alleged risk is confined to identified establishments, but that does not create a general requirement for every assurance to name a prison.

Two appeals challenged extradition orders made by magistrates’ courts. Both originally raised whether prison overcrowding in Hungary created a real risk of a breach of Article 3. The respondents later conceded the general risk and gave further assurances.

For the first appellant, the assurance guaranteed at least 3 square metres of personal space but did not identify the prison. For the second appellant, the assurance identified Szombathely National Prison, where Article 3-compliant conditions were accepted. The second appellant also sought to raise a limitation issue concerning one European arrest warrant, together with an adjournment and permission to amend.

The central issues were whether the first assurance was sufficient and whether the second appellant should be permitted to advance the limitation objection.

1. Appeals dismissed. The assurance given for the first appellant was sufficient to dispel the real risk of an Article 3 violation. The Article 3 objection in the second appellant’s case had fallen away because his detention location was specified and accepted as compliant.

2. The court accepted that there was compelling evidence of continuing general shortcomings in the Hungarian prison estate. That evidence explained why assurances remained necessary, but did not establish that an individual assurance given to the United Kingdom would not be honoured.

3. The assurance for the first appellant was in the same terms as that approved in GS & Ors v Central District of Pest, Hungary & Ors. It was a solemn undertaking to the court. The decisive evidence was the unequivocal and specific information that no assurance given to the United Kingdom for an individual had been breached. The indirect and anonymous contrary evidence carried limited weight.

4. The failure to identify a particular prison did not make a material difference. The court relied on the approach in Jane v Prosecutor General’s Office, Lithuania, including the distinction between a state’s general obligation concerning its prison estate and a straightforward solemn assurance concerning an individual. General failures might bear on reliability, but substantial efforts to improve conditions and previous compliance were relevant to whether the assurance could be trusted.

5. The opinion of the Advocate General in ML was neutral because the question whether a Hungarian assurance must identify the prison did not arise. Shumba & Ors v France was distinguishable: it concerned a risk confined to four named prisons and did not concern assurances.

6. The court refused to adjourn or permit the second appellant to amend his grounds to raise limitation. Foreign law was a question of fact on the evidence. The point had not been pursued in time, no formal amendment application had been made, and the material before the court did not show an obviously good case. In any event, the second appellant was to be extradited on the other European arrest warrant, and could raise any valid limitation objection in Hungary.

• High Court (Administrative Court): Appeals dismissed. The first appellant’s Article 3 objection failed in light of the individual assurance. The second appellant’s Article 3 objection fell away, and permission to advance the limitation issue was refused.
• Magistrates’ courts: Extradition orders were made against the first appellant on 15 September 2017 and the second appellant on 6 November 2017.
• High Court: Permission to appeal on the Article 3 ground alone was granted on 21 December 2017. The respondents conceded a real risk of an Article 3 breach on 15 May 2018.