Zabolotnyi v Mateszalka District Court, Hungary
On 23 February 2021 the Supreme Court will consider the first ever extradition appeal concerning prison conditions in a requesting state. It will deal with the viability of assurances which purport to guarantee compliance with Article 3 of the European Convention on Human Rights. It concerns the following question of public importance:
“Where a Court is obliged to assess an assurance given to the United Kingdom relevant to extradition, is it is correct that the Court should exercise very considerable caution before admitting evidence which does not relate to an alleged previous breach of an assurance to the United Kingdom, but rather to an alleged breach of assurance to another EU member state? If yes, is it a correct approach that the Court should satisfy itself that such evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the decision in question?”.
On 1 September 2017 a Ukrainian individual’s extradition was ordered by a District Judge at Westminster Magistrates’ Court. He is accused of attending a government office in Hungary on 15 April 2015 and, conspiring with a public official, submitting a fraudulent application for a passport under a different name.
Among several bars to extradition which were raised it was submitted that there was a real risk that his extradition to Hungary would result in a breach of his right to protection from inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights.
In recent years there have been a number of extradition cases where the courts have been required to consider allegations of breaches of Article 3. The most common issue raised concerned overcrowding. In its landmark ruling of Muršić v Croatia (2017) 65 EHHR 1 the Grand Chamber of the Strasbourg Court ruled that a prisoner must be accorded personal space of at least 3 m2 and it had become the practice for several countries to issue assurances to the domestic court which guaranteed compliance with Article 3.
After the hearing before the Magistrates’ Court and before the appeal was heard the Hungarian Ministry of Justice gave assurances that the Appellant would be held in satisfactory prison conditions and he would be guaranteed at least a personal space of 3 m2
On 16 April 2019 judgment was given by a three-judge Divisional Court (Irwin LJ, Simler J and Sir Kenneth Parker). The Court held that some categories of evidence were inadmissible for the purpose of testing assurances.
The Appellant sought to rely on evidence from various individuals who had been extradited to Hungary from both the UK and Germany. They had complained that they had been subject to assurances which had not been honoured. The Hungarian Ministry of Justice refused to give information about the individuals extradited from Germany because it was said that Hungarian domestic law prevented it from providing information to the UK. A distinction was drawn between assurances given to the UK and breached and those given to other Member States.