What does the Supreme Court’s judgment on assurances in Zabolotnyi mean for mutual trust and recognition in a post-EAW world?

On Friday 30 April 2021, the Supreme Court handed down judgment in the case of Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14. In a unanimous decision, the five-person court upheld the Divisional Court’s decision to dismiss the appellant’s appeal against an order for his extradition to Hungary but held that its reasoning had been wrong in principle.

Background to the appeal

In 2017, the appellant’s extradition was ordered at first instance pursuant to an accusation European Arrest Warrant (‘EAW’). In 2018, the Divisional Court in Fuzesi v Hungary [2018] EWHC 1885 (Admin) held that assurances in respect of prison conditions are required before a requested person can be extradited to Hungary. Consequently, the Hungarian Ministry of Justice provided personal assurances to the appellant that he would be detained in one of two modern prisons meeting the minimum requirements of Article 3 of the European Convention on Human Rights (‘ECHR’).

The question for the Divisional Court was whether the assurance provided was sufficient to dispel any real risk of a breach of the appellant’s Article 3 rights. The appellant sought permission to rely on fresh evidence in the form of reports detailing alleged breaches of assurances given to persons extradited to Hungary from both the UK and Germany. Refusing permission and dismissing the appeal, the Divisional Court held that, in order to rely on evidence of alleged breaches of assurances given to a third state (in this case, Germany), the court would have to satisfy itself that the evidence was manifestly credible, directly relevant to the issue to be decided and of real importance for the purpose of that decision.

Supreme Court decision

The question for the Supreme Court was whether there is any such heightened test for the admissibility of evidence concerning alleged breaches of assurances given to a third state.  Holding that there is not, the court said that, in deciding whether an assurance made otherwise than by a judicial authority can be relied upon, the court is required to undertake a free evaluation of the assurance, which requires it to examine and assess all relevant evidence. Evidence of previous compliance or non-compliance with an earlier assurance will obviously be relevant. No sound distinction could be drawn between the breach of a prior assurance given to the UK or to a third state. Any such distinction would be illogical and unprincipled. The court could find no trace of authority in the case law of the European Court of Human Rights, the Court of Justice of the European Union (‘CJEU’) or UK domestic courts for adopting a different test of admissibility of evidence of breaches of assurances to third states. The question of admissibility should be approached on the same basis as any other evidence of a breach of an undertaking. Thereafter, the weight to be given to is a matter for evaluation by the court having regard to all the circumstances of the particular case and bearing in mind that cogent evidence is required to rebut the presumption of compliance.

Nevertheless, in the instant case, the appellant’s appeal had been brought pursuant to section 26 of the Extradition Act 2003 (‘the 2003 Act’). Consequently, fresh evidence could only be admitted by the Divisional Court if it satisfied the restrictive conditions in section 27 of that Act, in particular section 27(4)(b), which requires that the evidence would have resulted in the judge deciding the relevant question differently at the extradition hearing. The Supreme Court agreed with the conclusion of the Divisional Court that the fresh evidence (consisting of hearsay evidence of alleged breaches compiled by a Hungarian lawyer) could not have been considered decisive on the issue of the reliability of the assurances given and, in those circumstances, the Divisional Court had been bound to dismiss the appeal.

Where now for mutual trust and recognition under TACA? 

In its reasoning, the Supreme Court gave detailed consideration to the principles of “mutual trust” and “mutual recognition” underpinning the now defunct EAW regime. The principle of mutual trust is a defining feature of the EAW regime, designed to simplify and accelerate surrender arrangements. It requires that Member States, save in exceptional circumstances, presume that all other Member States are acting in a manner compliant with EU Law and in particular, with the fundamental rights and freedoms recognised thereunder. It applies to assurances given by a judicial authority in one Member State to a judicial authority in another, and, where such an assurance on conditions of detention is given, the CJEU has held that it is a factor which the executing judicial authority cannot disregard.

The court confirmed that as the assurance was given by the Hungarian Ministry of Justice, which is not a judicial authority for the purposes of the EAW regime, the evaluation of the assurance was less constrained by the principle of mutual trust. Absent these constraints, a more circumspect assessment of all the available evidence, including previous breaches of past assurances, was required. For UK practitioners, this is a very timely steer. At the end of the transition period following the UK’s exit from the European Union, the Trade and Cooperation Agreement 2020 (‘TACA’), subject to limited transitional arrangements, replaced the Framework Decision on the EAW for the purposes of extradition between the UK and EU Member States. In a notable departure from the EAW regime, the TACA makes no mention at all of “mutual trust” or “mutual recognition”. The instant decision provides a useful statement of the approach to be taken when considering assurances in cases falling under the TACA and no longer governed by the principle of mutual trust.  By analogy, the court’s reasoning that without ‘mutual trust’ the UK courts should be less inhibited in scrutinising compliance with the rule of law and fundamental rights in the requesting State may lend support to abuse of process arguments and other defence challenges that seek to go behind the arrest warrant.  As to the ongoing relevance of the authorities cited by the Supreme Court in their discussion of mutual trust and recognition, the position is far less certain.