Zabolotnyi v The Mateszalka District Court, Hungary

When evaluating a non-judicial assurance about detention conditions in an extradition case, the court must assess all relevant evidence freely. Evidence that the requesting state breached a similar assurance given to another state is admissible on the same basis as evidence concerning an assurance given to the United Kingdom. No special requirement of manifest credibility, direct relevance or real importance applies.

Past compliance and non-compliance are relevant, but their weight depends on all the circumstances. Cogent evidence is required to rebut the presumption that a Convention state and EU member state will honour a specific assurance. Under section 27(4) of the Extradition Act 2003, fresh evidence must satisfy the statutory conditions for allowing an appeal; the provision is a rule of decision rather than admissibility.

Hungary sought the appellant’s extradition under an accusation European Arrest Warrant. He contended that Hungarian prison conditions created a real risk of treatment contrary to article 3 of the European Convention on Human Rights. After the extradition hearing, the Hungarian Ministry of Justice gave a personal assurance that he would receive at least three square metres of personal space and would be held in one of two modern prisons.

The appellant sought to introduce reports alleging breaches of assurances previously given by Hungary in respect of persons extradited from the United Kingdom and Germany. The Divisional Court, in Zabolotnyi v The Mateszalka District Court, Hungary [2019] EWHC 934 (Admin), refused to admit the reports and dismissed the appeal. It held that evidence concerning assurances given to other states required very considerable caution and should be admitted only if manifestly credible, directly relevant and of real importance.

The central issues were whether that heightened approach was legally correct and whether the fresh evidence satisfied section 27(4) of the Extradition Act 2003.

Lord Lloyd-Jones delivered the sole judgment, with which Lord Hamblen, Lord Leggatt, Lord Burrows and Lord Stephens agreed. The appeal was dismissed unanimously.

1. The Divisional Court’s special threshold for evidence concerning assurances given to third states was wrong in principle. Where an assurance is not given or endorsed by an issuing judicial authority, the court must evaluate it freely by examining all relevant evidence. Neither the jurisprudence of the European Court of Human Rights and the Court of Justice nor domestic law supports a requirement that third-state evidence be manifestly credible, directly relevant and of real importance before it may be considered.

2. Evidence of a requesting state’s past compliance or non-compliance with similar assurances is relevant to future reliability. No sound distinction exists between an assurance given to the United Kingdom and one given to another state. Its weight depends on matters including the assurance’s specificity and whether any breach was deliberate or inadvertent. Cogent evidence remains necessary to rebut the presumption that a Convention state and EU member state will honour a specific assurance.

3. Article 15(2) of the Framework Decision 2002/584/JHA may be used, in appropriate circumstances, to obtain information about alleged breaches of assurances given to third states. Such a request is a last resort. The court must first evaluate the available evidence and decide whether further information is necessary.

4. Section 27(4) of the Extradition Act 2003 prescribes conditions for allowing an appeal; it is not a rule governing admissibility. The High Court’s power to receive fresh evidence forms part of its inherent control of procedure and is exercised in the interests of justice. The statutory scheme confines extradition appeals narrowly, and evidence relied upon under section 27(4)(b) must be capable of producing a different decision.

5. The appellant’s reports were not decisive. The relevant assurances to Germany were unavailable, the allegations were largely untested hearsay, and the evidence did not establish a systemic problem affecting Hungarian assurances. The Divisional Court was entitled to find that the material was insufficiently cogent to rebut the presumption of compliance. Section 27(4)(b) was therefore unsatisfied, no request under article 15(2) was required, and the Divisional Court was bound to dismiss the appeal.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously and upheld the extradition order: Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14.
2. High Court, Divisional Court: Refused the application to admit the fresh evidence and dismissed the extradition appeal: [2019] EWHC 934 (Admin).
3. High Court, Divisional Court: Adjourned the proceedings for hearing by a three-judge court because of the significance of the issue concerning alleged breaches of assurances given to foreign courts: [2018] EWHC 3840 (Admin).
4. Westminster Magistrates’ Court: Rejected the objections to extradition and ordered surrender under section 21A(5) of the Extradition Act 2003.