Supreme Court dismisses first ever extradition appeal concerning prison conditions in a requesting state


Re: Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14

The respondent, the Mateszalka District Court, Hungary, sought the extradition of the appellant, Mr Zabolotnyi, to Hungary pursuant to a European Arrest Warrant. In September 2017, the District Judge ordered Mr Zabolotnyi’s extradition to Hungary. Mr Zabolotnyi appealed to the High Court.

During his extradition hearing, Mr Zabolotnyi had argued that he faced a real risk of being detained in overcrowded prison conditions in Hungary, in breach of his rights under Article 3 of the European Convention on Human Rights. The Hungarian Ministry of Justice gave an assurance guaranteeing that, if extradited, Mr Zabolotnyi would be held in conditions compliant with Article 3. However, Mr Zabolotnyi argued that this assurance was unreliable. On appeal to the High Court, he sought to rely on fresh evidence from individuals extradited to Hungary from both the UK and Germany who complained that they had been subject to comparable assurances which were not honoured.

The High Court ([2019] EWHC 934 (Admin)) held that there was no substantial risk that Mr Zabolotnyi’s Article 3 rights would be breached if he was extradited to Hungary. It held that evidence of past breaches of assurances given to other member states would only be admissible if it was manifestly credible, directly relevant to the issue to be decided and of real importance for the purpose of that decision. Applying that test to Mr Zabolotnyi’s case, the evidence relating to breaches of the German assurances was held to be inadmissible. The evidence concerning the UK assurances was considered to be limited. The appeal was dismissed. Mr Zabolotnyi then appealed against that ruling to the Supreme Court.

The issue for the Supreme Court in this appeal was whether there is a special test for admitting evidence relating to assurances given to the courts or authorities of countries other than the United Kingdom.

HELD: On the question of law upon which permission was granted, the Supreme Court accepted the Appellant’s submissions that there is no heightened test for the admissibility of evidence concerning alleged breaches of assurances given to a third state and that the test applied by the Divisional Court below was therefore wrong. However, the appeal was dismissed because the Supreme Court found that even if the correct test had been applied there was still not enough evidence to show a real risk of a breach of Article 3. Mr Zabolotnyi sought to rely on fresh evidence which was not before the District Judge at the extradition hearing. His appeal was brought pursuant to section 26 of the 2003 Act, which means that the Divisional Court could only allow it if all of the conditions in section 27(4) were satisfied. The condition in section 27(4)(b) is particularly restrictive: it provides that an appeal can only be allowed if the fresh evidence would have resulted in the judge deciding the relevant question differently at the extradition hearing. Accordingly, while the court has a general power to admit fresh evidence as part of the inherent jurisdiction of the High Court to control its own procedure, it can only allow an appeal brought pursuant to section 26 if the fresh evidence would be decisive of an issue arising in the case. In summary, the fresh evidence could not be considered decisive in favour of Mr Zabolotnyi, so it could not have resulted in a different outcome in this case.

Florence Iveson was involved in this case.