Zabolotnyi v The Mateszalka District Court, Hungary

The appeal concerned the surrender of the appellant under an accusation European arrest warrant to Hungary and a challenge based on a real risk of treatment contrary to article 3 ECHR in Hungarian prisons. The Supreme Court held that there is no special rule of admissibility preventing a court from admitting evidence of alleged breaches of assurances given by a requesting state to a third state; such evidence is relevant and should be assessed on the same basis as other evidence. The judgment summarises the applicable principles from the Framework Decision and the jurisprudence of the CJEU and the ECtHR on mutual trust and assurances, and explains that where an assurance is not given or endorsed by a judicial authority an executing court must carry out an overall assessment of the available information. However, because the appellant’s challenge relied on fresh evidence under section 27 of the Extradition Act 2003, the strict statutory test for allowing fresh evidence on appeal applied and the evidence in this case (reports of Dr András Kádár) was not sufficiently cogent or decisive to satisfy that statutory test. The appeal was therefore dismissed.

Background and procedural posture: The Mateszalka District Court in Hungary issued an accusation European Arrest Warrant. The appellant was arrested in the United Kingdom on 15 June 2017 and committed for extradition following a Westminster Magistrates’ Court hearing on 1 September 2017. The appellant appealed and the Divisional Court dismissed the appeal in [2019] EWHC 934 (Admin). Leave to appeal to the Supreme Court was granted and the appeal was heard on 23 February 2021.

Nature of the claim / relief sought: The appellant resisted surrender under the EAW on the ground that there was a real risk of inhuman or degrading treatment contrary to article 3 ECHR if he were extradited to Hungary because of Hungarian prison conditions. He relied in part on fresh evidence alleging breaches of assurances given to other states.

Issues framed by the court:

• whether there is any special rule of admissibility or heightened test requiring a court to treat evidence of alleged breaches of assurances given to third states differently from other evidence;
• how assurances given by a non-judicial authority in the issuing state should be evaluated by an executing court;
• whether the fresh evidence tendered under section 27 of the Extradition Act 2003 met the statutory conditions for allowing the appeal.

Key holdings and reasoning: The Supreme Court reviewed the Framework Decision, the principle of mutual trust and the authorities of the CJEU (including Aranyosi, ML and Dorobantu) and the ECtHR (including Othman, Ananyev and Muršić). It held that mutual trust produces a presumption of compliance by member states with fundamental rights, but that where there is information indicating a real risk the executing authority must assess that risk. Where an assurance is not provided or endorsed by a judicial authority it must be evaluated by an overall assessment of the information available to the executing court; there is no rule excluding evidence of breaches of assurances given to third states and no special admissibility test for such evidence. Nevertheless, the statutory test in section 27(4) of the Extradition Act is demanding: fresh evidence on appeal must be evidence that was not available at the extradition hearing and must be decisive such that, if the judge had had it, discharge would have been required. Applying that test to the reports of Dr András Kádár, the court found the reports were largely hearsay, lacked original assurances and documentary support in the German cases relied upon, and were not sufficiently cogent or decisive to satisfy section 27(4). The Divisional Court was therefore entitled to refuse to admit the fresh evidence and to dismiss the appeal.

Wider context: The court reiterated the availability of article 15(2) of the Framework Decision as a mechanism to request supplementary information from the issuing state and restated that assurances given by non-judicial authorities require an overall assessment of the evidence rather than a fixed special exclusionary rule.

Appeal dismissed. The Supreme Court held that there is no special rule of admissibility excluding evidence of alleged breaches of assurances given to third states; such evidence is relevant and must be assessed on the same basis as other evidence, but where fresh evidence is relied upon on appeal section 27(4) of the Extradition Act 2003 imposes a strict test requiring the evidence to be decisive. The fresh evidence in this case did not meet that test and the Divisional Court was entitled to dismiss the appeal.

Initial extradition order: Westminster Magistrates' Court (District Judge Snow) 1 September 2017 (order for surrender). Appeal to the High Court Divisional Court, which dismissed the appeals in Zabolotnyi [2019] EWHC 934 (Admin). High Court granted certification of a point of law under section 32(4)(a) and leave to appeal to the Supreme Court was granted on 12 March 2020. Supreme Court dismissed the appeal [2021] UKSC 14.