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UK Supreme Court Considers Extradition Appeal Concerning Article 3 And Prison Condition Assurances In Hungary

Posted by: Gherson Extradition

On 23 February 2021, the Supreme Court heard an appeal in respect of prison conditions in the case of Zabolotnyi-v- Hungary.

The Supreme Court considered the following questions:

When a court is considering whether to make or uphold an extradition order, and is obliged to assess an assurance given to the UK regarding future detention:

(1) Is there a special test for admitting evidence relating to assurances given to the courts or authorities of countries other than the United Kingdom?

(2) If so, was the High Court right that the court should exercise very considerable caution before admitting such evidence and that it should only do so if satisfied that the evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the purpose of that decision?


On 5 September 2017, at Westminster Magistrates’ Court, District Judge Snow ordered Mr Zabolotnyi’s extradition to Hungary. The European Arrest Warrant concerned an accusation request relating to obtaining a false passport.

Mr Zabolotnyi’s argument was that he faced a real risk of detention in overcrowded prison conditions in Hungary, in breach of his rights under Article 3 of the European Convention on Human Rights (“ECHR”). 

Concern over prisons in Hungary is nothing new. In March 2015, the European Court of Human Rights gave a pilot judgment in Varga v Hungary (2015) 61 EHRR 30. In the course of that case, Hungary conceded that there was an Article 3 risk in their prisons due to overcrowding. Since 2015, they have issued assurances to those facing return to prison and these assurances have been accepted by the UK courts, despite a number of challenges.[1]

In Mr Zabolotnyi’s case, the Hungarian Ministry of Justice gave an assurance guaranteeing that he will be detained in conditions compliant with Article 3 ECHR. 

On appeal to the High Court, Mr Zabolotnyi sought to rely on fresh evidence from individuals extradited to Hungary from both the UK and Germany. Those individuals provided evidence that they had been subject to comparable assurances, which the Hungarian authorities failed to uphold. 

Appeal to the High Court

The High Court held that there was no substantial risk of a breach of Mr Zabolotnyi’s Article 3 rights, if 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.[2]

In his case, the evidence concerning breach of German assurances was not admissible. The evidence concerning the UK assurances was considered limited and the appeal dismissed.

Potential significance

Challenges under Article 3 ECHR and the credibility of assurances are common in extradition proceedings. Practitioners have increasingly sought to rely on accounts from those who have returned to the requesting state to find that the validity of the assurance is undermined by the reality of the conditions.  

Whilst the courts may see such witnesses as having an ‘axe to grind’ against the requesting state, their evidence is often the most up-to-date available about the relevant prison and often given at some risk to their own personal interests and safety.

The pending judgment will likely affect the scope and approach to admissibility of evidence surrounding such comparable assurances from states outside the UK. The case has already pushed the issue of how far we can trust other states to uphold the rights of individuals under the ECHR centre stage. In particular, it will demonstrate how far we are willing to trust regimes with a checkered past in terms of Article 3 ECHR breaches and recent instances of non-compliance with assurances.

We await the judgment of the Supreme Court with interest and will provide further comment in due course. Join Gherson’s mailing lists to stay connected with the latest on this story or alternatively follow us on Twitter.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2021

[1] See GS and Others v Hungary [2016] EWHC 64 (Admin), Fuzesi and Others v Hungary [2018] EWHC 1885 (Admin).)

[2] See Zabolotnyi-v- Hungary [2019] EWHC 934

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