Szalai v The Tribunal of Veszpre, Hungary

In European Arrest Warrant proceedings, assurances about prison conditions may be relied upon where the court is satisfied, having regard to their quality and the receiving state’s practice, that they can be trusted. Evidence of breaches of assurances given to the United Kingdom is centrally relevant. Evidence concerning assurances given to foreign states is not legally inadmissible, but should be admitted only where it is manifestly credible, directly relevant and of real importance to the decision.

A solemn assurance is a binding undertaking between states. A prisoner’s request to remain in a less suitable prison, or waiver of complaint, does not release the requesting state from compliance. Executive assurances are not invalid merely because they are given by the Ministry of Justice rather than the issuing judicial authority.

Two appellants appealed extradition decisions made by District Judge Snow. Each case concerned extradition to Hungary under the European Arrest Warrant system and assurances that the appellants would receive at least three square metres of personal space in detention.

The appellants sought to rely on fresh expert evidence alleging breaches of assurances given in earlier extraditions from the United Kingdom and Germany. They argued that the evidence undermined the reliability of Hungary’s present assurances and created a real risk of treatment contrary to article 3 of the European Convention on Human Rights. The first appellant also challenged extradition under article 8. The common issue was whether Hungary’s assurances could safely be relied upon.

1. Fresh evidence and foreign assurances. The court refused permission to admit the new evidence and dismissed both appeals. A court is not legally precluded from considering evidence concerning alleged breaches of assurances given to another state. However, such evidence requires very considerable caution because the court may lack the original assurances, the foreign state’s response, the full factual context and information about related proceedings. It should be admitted only if manifestly credible, directly relevant and of real importance to the decision.
2. Reliability of assurances. The relevant question was whether Hungary could be relied upon to comply with assurances given to the United Kingdom. Evidence of short and promptly remedied breaches in two earlier UK cases did not establish a systemic problem, particularly in the context of improvements to Hungary’s prison estate and monitoring arrangements. The evidence did not displace mutual trust or establish substantial grounds for believing that either appellant faced a real risk of article 3 ill-treatment.
3. Binding character. A prison assurance is a solemn undertaking to the United Kingdom, not a bargain with the prisoner. Hungary could not treat a prisoner’s request not to be transferred, or a purported waiver of complaints, as excusing future compliance. The authorities should refuse such a request or continue to comply with the assurance.
4. Source of assurance. The court rejected the submission that, following ML v Hungary, only an issuing judicial authority or judge could provide a valid assurance. The judiciary did not control prison conditions, and an executive assurance from the Hungarian Ministry of Justice and Prison Service was capable of being relied upon.
5. Article 8. In the first appellant’s case, the district judge had undertaken the required proportionality balancing exercise. The public interest in extradition, the appellant’s fugitive status and limited UK family ties outweighed the relevant health and personal factors. No arguable error was established.

The appeals were dismissed and extradition was to proceed in both cases.

• High Court (Administrative Court): District Judge Snow ordered extradition in both cases. The High Court dismissed the appeals and held that extradition should proceed.