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Mishcon Academy: Digital Sessions - Extradition Alert – Zabolotnyi v Hungary and the impact of the Supreme Court's judgement

Posted on 19 May 2021

Ben Brandon

Hello and welcome to the Mishcon Academy Digital Sessions podcast.  I’m Ben Brandon, a Partner and Head of the Extradition Team at Mishcon de Reya.  In this episode we will be discussing the recent decision of The Supreme Court in Zabolotnyi and the Mateszalka District Court in Hungary with James Hines of Queen’s Counsel, who acted as the Lead Counsel for the respondent, the Issuing Judicial Authority in Hungary in that case.    James is in the middle of a trial in the Cayman Islands at the moment and is joining us remotely, having woken at an unusually early hour on a public holiday on the Island.  So, thank you very much James for joining us to discuss this important case. 

James Hines

It’s a pleasure. 

Ben Brandon

Now, James although this Zabolotnyi case was the latest episode in a long-running saga of prison conditions in Hungary, which is perhaps of less general application to the practitioner, it did explore a couple of interesting cul-de-sacs of extradition law, concerning the admissibility of evidence of breach of prior assurance given by a third state and the role and threshold for Article 15.2, framework decision requests where there is evidence of such prior breaches.  So, I want to explore those two cul-de-sacs a little more with you, James and to turn to the first question, before we, before we go there and to provide the listener with a little background, the prison conditions generally in Hungary have been the subject of fairly sustained judicial criticism both in this jurisdiction and in the Strasbourg Court in recent years.  What have the problems been and how have the authorities in Hungary responded?

James Hines

Well, Hungary, like many European countries, has an ageing and deteriorating prisoner state.  Not unlike the UK, with old Victorian prisons such as Wandsworth and Wormwood Scrubs, they are becoming not fit for purpose.  Also, there is the issue of over-crowding, again not unknown to many countries across Europe.  These problems have occurred, for instance, in Lithuania as well as Hungary and it engages Article 3 of the European Convention on Human Rights or alternatively Article 4 of the Charter of Fundamental Rights, both of which, although headed ‘Torture’, also prohibit inhumane or degrading treatment or punishment and so that’s really the territory we’re in.  Is the treatment of the prisoners in the estate degrading punishment or inhumane punishment?

The European Courts have generally adopted a policy of 3m2 per individual prisoner and of course that in itself is tiny.  There aren’t individual cells of 3m2 or less but it normally is engaged where there are prison cells with many occupants in, each of whom has got less than 3m2 so, it’s a number of prisoners within a multi-occupied cell and so the overcrowding and the space in some of these ageing prisons is a problem.  In Hungary’s case, it resulted in a case called Varga, in 2015, where the European Court said this really wasn’t good enough and they issued a pilot judgement about prison conditions in Hungary.  Since then, Hungary has been making fairly strenuous efforts to improve the conditions generally and they have tried to imprison fewer people, they’ve tried to improve the estate and things like that. 

The problem with the pilot judgement is that it undermines the first part of the mutual trust that you afford other member states about their treatment of people returned under extradition.  In other words, whilst all member states enjoy a general assumption and are trusted to ensure that anyone sent over will be afforded their human rights whether that’s under the charter or under the convention, that assumption is lost because of the pilot judgement in Varga in 2015.  Since then, since 2015, Hungary has been trying to get back that general assumption and mutual trust so that they can be trusted to afford people their rights and that has proved very difficult and in fact, one of the interesting factors in this is so far as far as I can see, no country who has been subjected to a pilot judgement and has lost that assumption of compliance, has managed to get it back. 

The Court here effectively said that in order to retrieve that, a substantial and compelling case for the whole estate having reached the relevant standard would be required and in various cases, they found that not to be the case and so, countries like Hungary and Lithuania have had to fall back on providing assurances; assurances individually given to countries that if, for instance, somebody is extradited from the UK, they will be afforded their rights and they assure that in various ways.  In Hungary’s case, they do it primarily by assuring that people will be imprisoned in two prisons in particular - Szombathely and Tiszalök – and the reason for that is because they are more modern and they’re privately-run prisons and so that meets the standard and the divisional Court have held in the past that an assurance for instance, specific to various prisons, is going to be good enough. 

Ben Brandon

And those assurances are in effect are they not?  So, promises that are given by the relevant authority and the requesting state, I think in this case it is the Ministry of Justice that provides that assurance and the assurances that the requested person will be treated in a particular way upon his or her return and that usually involves assurances, or promises, as to the space that they will be afforded in their cell (whether that’s a single-occupancy cell or, as is more likely, a multi-occupancy cell), that they will be afforded a certain amount of time outside the cell, access to adequate washing facilities and heat and light and ventilation and so on and so forth.  Are those the type of assurances that we’re dealing with in this case?

James Hines

Absolutely and usually also included is the space criteria that they will be given more than 3m2.  Just nominally, specifically and explicitly within the assurance. 

Ben Brandon

Yep sure.  So, that’s the background to the case.  Hungary, the Article 3 test, the assurances that are given.  Have the domestic Courts or the Strasbourg Court given the extradition Courts in the UK guidance as to what to look for in deciding whether an assurance in a particular set of circumstances can be relied upon or not?  Or is there some kind of general assumption that if a requesting state gives an assurance it ought to be respected, it ought to be relied on?

James Hines

Well, the answer is yes to both of those issues.  In the leading case of Ottman, which is applied almost universally in the United Kingdom, they set out the factors which a Court ought to take into consideration when considering whether the assurance is good enough and passes muster.  And in fact, it is quoted in the judgement in this case and one of the very important factors which becomes very relevant to the decision, it’s in Paragraph 38 of the judgement and it’s the seventh factor which Ottman identifies and it's this: that the length and strength of the bilateral relationship between the sending and receiving countries is a factor but it goes on then to say, “…including the receiving state’s record in abiding by similar assurances.”

And so within that one factor which Ottman identifies are not only the strength of the bilateral relationship but also reference to abiding by similar assurances and one of the issues that we had to consider was whether that reference was similar assurances between the sending state and the receiving state, the bilateral assurances, or whether it was the record of abiding by similar assurances given to any other state within the member states and on the second issue, which is from whom the assurance might come, there is a general assumption that an assurance given by the issuing judicial authority, which ordinarily might be a Court or a prosecutor or something like that, must be accepted in short, that there was scope for examining and evaluating an assurance if it was not given by the issuing judicial authority state itself but rather by say the Ministry of Justice as has happened in this case. 

Ben Brandon

That’s a very helpful and very full background to this case and perhaps a slightly more succinct question really just to assist the listener in navigating their way through this decision.  But what were the issues that arose in the statutory appeal and how were those issues decided?

James Hines

Well, what had happened was, at the Magistrates Court stage, the Magistrate had been persuaded by all the work that Hungary had done and so he ordered the surrender of the appellant without the need for an assurance.  He effectively said, “They’ve done a lot of work, it’s all improved and so I’m satisfied.”  But what had happened between the Magistrates Court and the Divisional Court hearing was, it turned out that one of the defendants back in the Varga case, back in 2015, which was the pilot judgement, had very recently been given less than 3m2 in his cell and so this absolutely torpedoed the Magistrate Court assessment and clearly meant that assurances were required again and so the issue of assurance arose for the first time on appeal and then there was an attack on the credibility of the Hungarian assurance. 

Ben Brandon

And that attack on the credibility of the Hungarian assurance, on what was that based?  Was it on alleged prior breaches of assurances given to the UK Court by the Hungarian authorities or did it go wider than that?

James Hines

It was a number of relatively small breaches of assurances given to the UK and the real significance was, additionally there were alleged breaches of two assurances given to Germany and so it was really the consideration of those two German breaches or alleged breaches which was the subject of the appeal. 

Ben Brandon

So, how did the Divisional Court then approach the evidence of the German breaches?

James Hines

Well, for our part there wasn’t really very much authority on it.  So, we had to try and decide what the proper approach should be and for the respondents, we conceded openly that of course evidence of breaches of German assurances could be relevant to the assessment of the assurance given to the UK.  But it was really to do with the quality of the evidence and we submitted that where it was admitted by Hungary, or there’d been a judgement either in Hungary or indeed in Germany or an Ombudsman had made a decision, or where there’d been a request for consideration about prisoners’ rights that had been considered by an Ombudsman in Hungary or something like that.  What we said though, was that it was very difficult for the English Court to determine the underlying facts, particularly on appeal and particularly with fresh evidence where there was not a judgement or a response from Hungary. 

Ben Brandon

And it looks like the Divisional Courts agreed with you and this is from their decision and it’s reproduced at Paragraph 25 of The Supreme Court Judgement and they said, “Having regard to these considerations, we conclude that a Court would have to satisfy itself that the evidence relating to assurances given in extradition elsewhere,” (in this instance the third state being Germany), “is manifestly,” - and then these are important words for the purposes of The Supreme Court appeal - “credible, is directly relevant to the issue to be decided and of real importance.”  So, manifestly credible, directly relevant and of real importance.  So, that’s what they came to and they decided that that threshold needed to be crossed before fresh, in particular fresh evidence, but indeed, potentially I suppose, any evidence of breaches of prior assurances given by third states could be admitted in extradition proceedings and is this right, James? It is really that, that formed the basis of the appeal to The Supreme Court.  The certified question being, and I’m paraphrasing it, when considering the reliability of an assurance given to the UK as to the treatment of a requested person upon their return, and then this is the question should the Court satisfy itself that evidence of an alleged prior breach of an assurance to a third state is manifestly credible, directly relevant to the issue to be decided and of real importance for the decision in question, before it admits that evidence?  So, that is how the Divvy Court made its decision.  That became the focus for The Supreme Court Case, as expressed in that certified question and how did The Supreme Court treat that apparently new test of admissibility that had been introduced by the Divisional Court?

James Hines

Well, how you’ve described it is exactly right, but they did treat it as new and that really was the issue.  I had submitted, in short, the proper approach to breaches of assurances was exactly the same as the proper approach to trusting a member state in respect of the rights that they were entitled to an assumption, that they would abide by the assurance and what would be needed was effectively set out in the leading case of Aranyosi, which all practitioners will be aware of that in order to displace the assumption, what was needed was objective and reliable, specific and properly updated, evidence.  And in fact that their lordships quoted that at Paragraph 44, a non-exhaustive list and so, for me, I effectively argue that the words, “Manifestly credible, directly relevant and of real importance for the purpose”, weren’t really all that different from the Aranyosi test.  The only difference was effectively the adjectives. 

Ben Brandon

Did The Supreme Court agree with you, Mr Hines?

James Hines

No, they didn’t.  They didn’t.  They decided that this did seem to represent a heightened test for the admissibility of evidence for breaches of assurances given to third parties and they said that that was erroneous and there was no heightened test and that effectively was their decision.  In fact, I argued it wasn’t a heightened test and I lost on that. 

Ben Brandon

Well, that’s certainly what comes across fairly strongly from the decision. 

James Hines

Yes, absolutely. 

Ben Brandon

They thought the Divisional Court had made an error of law and that the introduction of a special rule of admissibility or a heightened legal test which prevents an appellant from relying on evidence of a breach of assurance to a third state was wrong.  So, where we end up is that The Supreme Court decides that evidence can be admitted under the usual rules of admissibility, Aranyosi, of course and on appeal, the fresh evidence rules in Fenyvesi.  How did that resolve itself in The Supreme Court Case on the facts?

James Hines

Well, on the facts, I was able to say to the extent that it might be manifestly credible and all the rest, to the extent that that might represent a heightened test, it was no more than reflecting the test set out in that leading case of Fenyvesi, which I see you were in back in 2009, which was where fresh evidence is relied upon, not only must it not be available and all the normal rules but in essence, it must be decisive that the magistrate would have made a different decision in respect of discharge or surrender, had that evidence been properly considered. 

Ben Brandon

Turning on then, to discuss the questions for practitioners and perhaps legal academics that arise from this decision, and putting to one side the moment the issue of admissibility, what does The Supreme Court decision in Zabolotnyi tell us about the relative weight to be attached to evidence of a breach of assurance given to the UK, as opposed to a third state like, for example, Germany?

James Hines

Well, it’s back to that Eichmann seven, the sub factor seven.  There’s no doubt that breaches of assurances given to third parties or third states are clearly relevant and can be taken into consideration when assessing the assurance for the individual whose surrender is being sought.  But at the end of the day, the Aranyosi approach is an important one because what was said in Aranyosi of course, is that one starts by considering whether there are general deficiencies with a prison estate in the country concerned and if you find that there are, what you then go on to do is to examine the position for the individual concerned, the one whose surrender is being sought and what effectively will happen to that person and it’s Paragraph 94 and 95 in which the Courts say, “In order to ensure respect for Article 4 of the charter, in the individual circumstances of the person who is the subject of the warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies, is bound to determine in the particular circumstances of the case, whether there are substantial grounds to believe following the surrender of that person… and I’m emphasising that… to the issuing member state, he will run the risk of being subject to inhumane or degrading treatment.”  To that end, the authority must pursue Article 15.2 for supplementary information in respect of that individual.  So, the bottom line is what the Court is assessing is the quality of one assurance on one day given for one individual and of course, the evidence of breaches to third states is relevant but ultimately the decision is about a single individual. 

Ben Brandon

Are there also practical difficulties involved, James, for a UK Court?  And these were touched upon as well, in fact they weren’t “touched upon” they were set out in some detail by the divisional Court in its decision, but practical difficulties posed to a UK Court in deciding the underlying facts of an alleged breach of an assurance given to a third state.  And I have in mind here, in particular, the juxtaposition that I think you set out in arguments to The Supreme Court, between proven and admitted breaches of the kinds that you’ve already touched upon.  So, there’s been a Court decision or an adjudication or even requesting state has said for example, “No, we accept that we did breach the assurances in this individual case.  We’re sorry, we won’t do it again.”  And here, in Zabolotnyi, whereas I understand it, the evidence from Germany wasn’t available and of course can’t be obtained pursuant to an Article 15.2 request because Germany’s not a party to the proceedings, it’s not the Issuing Judicial Authority.  That’s the German evidence.  And then on the other hand, where it was agreed I think between the appellant and the respondent in Zabolotnyi that as a matter of domestic law, Hungary couldn’t disclose information to the UK Court about whether or not it had abided by the German assurances.  Is there any way around those kind of practical difficulties?

James Hines

Well, I think the answer is, no, that when one looks at the sort of evidence that is described, in Aranyosi in particular, Paragraph 89, they indicate that the information may be obtained, this is about the conditions in the requesting state, that the information may be obtained from inter alia judgements of the International Court, judgements of the Human Rights, judgements of Courts in the issuing member state, decisions, reports and other documents.  One thinks of CPT Reports, the Committee for The Prevention of Torture, who regularly visit prisons.  And so certainly, Aranyosi anticipates the evidence coming from some pretty limited number of sources.  That doesn’t actually rule out of course, one person saying, “I was not given my rights under the assurance,” but how the Court goes about determining that.  Of course, it can exercise its Article 15.2 power and see what in this case Hungary says about it and quite frankly, Hungary, as any member state would candidly admit breaches and did so in some of the UK instances in this case.  But in the absence of an admission, how does the Court resolve whether or not there’s been a breach to a third member state?  As you rightly say, they can’t exercise 15.2.  And alternatively, if somebody is alleging a breach and Hungary provides evidence saying there was no such breach, how does the Court resolve that?  It seemed to me and I think The Supreme Court rather agreed that you were almost bound, any tribunal here was almost bound, to accept the word of the other member state over the assertion made by the individual about the breach and so it did seem to me that there does remain some practical difficulties in appellants actually proving these breaches to third member states. 

Ben Brandon

Yeah, I mean I think that’s, in a roundabout way, what I was driving at and one’s always reluctant to use words like, ‘pyrrhic victory’ and it’s not a pyrrhic victory because ultimately the appellants in Zabolotnyi, on the facts, didn’t succeed.  But in so far as this kind of removal of the Divisional Court’s special rule of admissibility or of heightened legal test, I wonder whether this judgement actually makes anything easier for requested persons or defendants or appellants in Zabolotnyi’s situation.  To summarise what you’ve said, I hope accurately, and tell me whether I’ve got this wrong, the difficulty we have is that what the Court is going to look to is first of all admissions of wrongdoing, admissions of breaches or indeed, findings.  So, that’s just as a practical approach, that’s likely what it’s going to look for where there is a claim of a breach of a prior assurance.  Aranyosi says that really the Court needs to look to a fairly selective list of sources where those findings or admissions might be recorded.  You know, judgements of the European Court of Human Rights, CPT reports and so on and so forth and we’ve also got the problem of the appellant, in Zabolotnyi’s situation, of the assumptions that are made by the Court when dealing with assurances that are given by member states and one assumes outside of a sort of Part 1 Extradition Act context, any state that the UK has a – quote, unquote – ‘extradition relationship with’, there’s going to be assumptions that go with that, that are if a state gives an assurance it’s going to abide by it.  So, as against that what you often have, as you said, is the evidence of an individual or perhaps a collection of individuals who’ve been returned pursuant to earlier extradition requests to the territory of the requesting state, they’ve been incarcerated in the prison system, prison estate in that requesting state and they’ve then complained that assurances that have been given have been breached.  It’s a bit of an unequal, unequal struggle isn’t it, really?

James Hines

Well, it is but I think that’s just inherent in the whole of the EAW system.  That when one remembers this is supposed to be the execution of a warrant and not the determination of evidential issues, it’s supposed to be a quick and simple system and here in the UK, that just is not a reality.  More and more times, for instance, particularly with prison conditions, the defence present evidence of alleged breaches of either prison conditions or assurances and there is a massive delay for that issue to be determined at an evidential hearing either in the Magistrates or in the Divisional Court and to try and shorten that, the Crown Prosecution Service, when they receive this evidence from the defence, tend to immediately send it off to the issuing divisional authority, the requesting state, for their comments and evidence in reply and that in itself immediately builds in huge delay into the system. 

Ben Brandon

Sorry James, so do you think then that this case might actually be authority for the proposition that the UK Court and perhaps on your analysis and all Extradition Practitioners will have experienced this for themselves, but the CPS doesn’t actually need to get to the bottom of every defence claim of a breach of assurances or mistreatment, violating Article 3, using the Article 15.2 power or like power?

James Hines

Well, exactly.  The Article 15.2 power is for the executing Judicial Authority, in this case the Court here in the UK, to determine whether it needs that supplementary information or not.  But the CPS, there’s nothing in the framework decision that specifies that the CPS representing the issuing Judicial Authority here in the UK, needs to pump this information out upon receipt.  I don’t think it’s going to completely stop requests for further information being made by the CPS but I think from both sides, I think the way that The Supreme Court analyse the quality of the evidence, never mind the admissibility, but the quality of the evidence in this case and concludes that Article 15 ought not to be exercised or needn’t be exercised by the Divisional Court, I think that will give guidance effectively to both sides.  From the CPS point of view, it’ll give them assistance in identifying instances where they don’t need to pump out a request for further information immediately and automatically.  And for the defence side, the other side of the coin, I think it’ll identify what triggers or targets need to be met that will require the request for further information either by the CPS or ultimately by the Court under 15.2. 

Ben Brandon

And James, just a last question really.  You have highlighted a number of key takeaways for practitioners from this judgement in your last couple of answers.  Are there any other takeaways that you think we as practitioners ought to have in mind when looking at this judgement?

James Hines

Well, yes.  I mean, I touched on this earlier but it is to analyse exactly who’s giving the assurance, whether it is actually being given by the Issuing Judicial Authority or whether it’s being given by some other body, such as the Ministry of Justice as in this case.  And identifying that distinction could well help the extent to which you can challenge that assurance given.  If it’s by the Issuing Judicial Authority then you’re in trouble.  If it’s by the Member State then it does, for instance, the Ministry of Justice or some other body then it can be evaluated and must be evaluated by the Court. 

Ben Brandon

I follow.  Right, James that’s extremely helpful and interesting.  So, for now, let’s wrap up there.  I’d like to say thanks so much to James Hines for joining us from so many thousands of miles away for this Mishcon Academy Digital Session podcast.  I’m Ben Brandon, as I’ve said at the top of this programme and in the next episode, my colleague Antonia Felix and Fiona Mallin, a Psychotherapist and Counsellor at Capital Minds, discuss the issues, causes and consequences related to the alleged Rape Culture in UK Schools and how can parents, school leaders and regulators help children caught up in the scandal?

And just a reminder, the Digital Sessions are a series of online events, videos and podcasts, all available at mishcon.com and if you have any questions you’d like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.  Until next time, take care. 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com. 

Join Partner Ben Brandon and James Hines QC, 3 Raymond Buildings, as they discuss the latest extradition case to reach the Supreme Court: Zabolotnyi v Hungary, where James appeared as leading counsel for the Respondent judicial authority.    

The case concerned prison conditions in Hungary, and whether and in what circumstances the UK extradition court should admit and assess evidence of a prior breach of an assurance as to post surrender treatment given to a third state.

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