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Cite as: [2019] EWHC 934 (Admin)

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		Neutral Citation Number: [2019] EWHC 934 (Admin)
		Case No: CO/2520/2018 AND CO/4125/2017

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

16/04/2019

B e f o r e :

LORD JUSTICE IRWIN
MRS JUSTICE SIMLER
SIR KENNETH PARKER
(SITTING AS A JUDGE OF THE HIGH COURT)
____________________

Between:

	SILVESTER FERENC SZALAI	1st Appellant
	- and -
	THE TRIBUNAL OF VESZPRE, HUNGARY And OLEKSANDR ZABOLOTNYI aka ZOLTAN DANI -and- THE MATESZALKA DISTRICT COURT, HUNGARY	1st Respondent 2nd Appellant 2nd Respondent

____________________

Jonathan Hall QC and Florence Iveson (instructed by McMillan Williams Solicitors Ltd) for the 1st Appellant
James Hines QC and Amanda Bostock (instructed by The Crown Prosecution Service) for the 1st Respondent
Jonathan Hall QC and Benjamin Seifert (instructed by Sonn Macmillan Walker) for the 2nd Appellant
James Hines QC and Amanda Bostock (instructed by The Crown Prosecution Service) for the 2nd Respondent
Hearing date: 21 March 2019
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Introduction

The principal issue in this case concerns conditions in Hungarian prisons, and the approach to be taken in assessing and relying on assurances as to prison conditions, given by the Hungarian authorities. These Appellants seek to admit and to rely on evidence which they say demonstrates a failure by the Hungarian executive to adhere to assurances given in the past. These earlier cases fall into two categories: cases of assurances in earlier extraditions from the United Kingdom, and cases from other Member States, in this instance extradition from Germany. The point is of interest since the approach to such a problem must be taken to be consistent in respect of any Member State, participating in the system of European Arrest Warrants, under Part 1 of the Extradition Act 2003 ["the 2003 Act"].

The Appellants seek leave to admit and rely on fresh evidence, including expert evidence, which they say demonstrates breaches of earlier assurances. The application to admit the evidence is before us. We agreed to consider the material de bene esse and to rule on the application at the same time as giving our substantive judgment.

As part of their response to requests for information, the Hungarian Ministry of Justice, Department of International Criminal Law have informed the court that Hungarian domestic law prevents disclosure to an English court of details of criminal proceedings, including extradition process, where the extradition is sought elsewhere than from the United Kingdom. This information is classified as "highly sensitive data". We address the effect of these provisions in the context of Article 15(2) of the Framework Decision of 13 June 2002 ["the Framework Decision"].

This is the judgment of the Court, to which we have all contributed.

The Background: Hungarian Prison Conditions and Assurances

It is a trite proposition that the operation of the European Arrest Warrant system under the Framework Decision and Part 1 of the 2003 Act depends on mutual trust and respect between the Member States, giving rise to a strong presumption that each Member State will effectively protect the rights of an extraditee under the European Convention on Human Rights ["ECHR"] and the Charter of Fundamental Rights adopted by the European Union. Since the decision of the Court of Justice of the European Union ["CJEU"] in Aranyosi and Căldăraru C-404/15 and C-659/15 PPU, EU:C:2016:198, a Court addressing a request for extradition, where a potential breach of a Convention Right is in question, where further information bearing on that breach has been requested and received, and where the court cannot discount or exclude that risk, "must decide whether the surrender procedure should be brought to a close": see paragraph 104 of Aranyosi.

Where the evidence, including any further information provided (or withheld), leads a Court to conclude that a relevant risk may otherwise exist, then specific assurances can be sought and may properly be relied on to discount or exclude the risk. It will be obvious that such assurances are only necessary where the presumption that a Member State will provide effective protection of Convention rights cannot alone be relied upon.

The approach to reliance upon assurances was established in Othman v United Kingdom (2012) 55 EHRR 1. Whilst that case concerned Jordan rather than a Member State of the EU, the principles can be read across. The principles are set down in paragraph 189 of the decision:

"189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving state's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:

(1) whether the terms of the assurances have been disclosed to the Court;

(2) whether the assurances are specific or are general and vague;

(3) who has given the assurances and whether that person can bind the receiving state;

(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;

(5) whether the assurances concerns treatment which is legal or illegal in the receiving state;

(6) whether they have been given by a Contracting State;

(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances;

(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers;

(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;

(10) whether the applicant has previously been ill-treated in the receiving state; and

(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State."

In this case we are of course not concerned with torture, but we are concerned with inhuman and degrading treatment and potential breaches of that limb of Article 3 of the Convention.

The question of prison conditions in Hungary has been of concern for some years. Since the decision of the European Court of Human Rights ["ECtHR"] in Muršic v Croatia (2017) 65 EHHR 1, the matter has been given sharper focus by the ruling that an Article 3 breach can and will be established if, subject to some qualifications, a prisoner will be accorded personal space in his or her cell amounting to less than 3m². The relevant passage in the headnote reads:

"3. Principles regarding prison overcrowding (art.3)

H7. (a) It was not possible to specify a specific number of square metres that should be allocated to a detainee in order to comply with art.3 , because other relevant factors relating to the overall conditions of detention played an important part. However, the minimum standard was 3m² of floor space per detainee in multi-occupancy accommodation. If the detainee's personal space fell below this standard, there was a weighty but not irrebuttable presumption of a violation of art.3 . The cumulative effects of detention may rebut the presumption that art.3 had been violated. The burden was on the Government to demonstrate convincingly that there were factors which adequately compensated for the lack of personal space. Whether the presumption had been rebutted should be informed by the cumulative effect of those conditions. [103]–[110], [122]–[126]

H8. (b) The strong presumption of a violation of art.3 could normally be rebutted only if the following factors were cumulatively met: (1) the reductions in the required minimum personal space of 3m² were short, occasional and minor; (2) such reductions were accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; and (3) the applicant was confined in an appropriate detention facility and there were no other aggravating aspects of the conditions of his detention. [137]

H9. (c) In cases where a detainee in multi-occupancy accommodation was allocated personal space of between 3 and 4m², the space factor remained a weighty factor in the assessment of the adequacy of conditions of detention. Article 3 would be found to have been violated if the restriction of personal space was coupled with 3 other aspects of inappropriate physical conditions of detention including, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, access to private commodes, and compliance with basic sanitary and hygienic requirements. [139]

H10. (d) There was a strong presumption in this case of a violation of art.3 in the periods when the applicant was in a cell with less than 3m² of personal space. The period of 27 days in such a cell could not be regarded as short, occasional and minor reductions in the required personal space. The strong presumption of a violation of art.3 had not been rebutted. [146]–[153]

H11. (e) For other periods, of between one and eight days in a cell with less than 3m² of personal space, and in a cell with between 3 and 4m² of personal space, other relevant factors might rebut the presumption of a violation of art.3. In the ordinary daily regime, the applicant was allowed two hours per day of outdoor exercise, three hours per day of free movement outside his cell, and time for meals outside his cell. Entertainment facilities were also available to the applicant. This significantly alleviated the problems of the applicant's lack of personal space. The applicant's complaints about the general conditions of his detention were inconsistent and contrary to the available evidence, and there was no reason to call into question the findings of the domestic authorities that the applicant was otherwise detained in generally appropriate conditions. The presumption of a violation of art.3 had been rebutted with respect to the shorter periods of time. [146]–[150], [154]–[177]"

These Appellants make their case squarely on the provision of the personal space in Hungarian prisons, and on the proposition that assurances of adequate personal space are not reliable. We have not been concerned with other aspects of conditions in Hungarian prisons. When and to what extent is evidence of alleged breaches of past assurances in other cases to be received and relied upon, in applying the Othman principles to assurances proffered?

The ebb and flow of concern as to prison conditions in Hungary is very well set out in the judgment of Singh LJ in Fuzesi and Others v Hungary [2018] EWHC 1885 (Admin) at paragraphs 16 to 29. We do not intend to recapitulate that history in detail. It is sufficient to summarise as follows.

In March 2015, the ECtHR gave judgment in a "pilot" case against Hungary, 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 because of overcrowding. Following on that acknowledgement, on 1 June 2015 Hungary gave a general assurance in relation to a group of people sought, in these terms:

"The Ministry of Justice of Hungary-acting as Central Authority-presents its compliments to the National Crime Agency and in connection with the surrender proceedings being conducted in the United Kingdom on the basis of the Hungarian European arrest warrants, has the honour to provide you with the following guarantee: The Ministry of Justice of Hungary and the National Headquarters of the Hungarian Prison Service, which has jurisdiction in Hungary to provide this binding assurance, guarantees that the following persons will, if surrendered from England and Wales pursuant to the respective Hungarian European arrest warrants, during any period of detention for the offences specified in the European arrest warrants, be detained in conditions that guarantee at least three square metres of personal space. The persons listed below will at all times be accommodated in a cell in which they will personally be *6 provided with the guaranteed personal space.

…

As of 1 January 2015, Hungary has signed, ratified and implemented the Optional Protocol to the UN Convention Against Torture (OPCAT) and has set up the General Ombudsman as its National Preventative Mechanism. Accordingly, the General Ombudsmen will monitor compliance with this assurance."

That assurance was considered to be sufficient by the Divisional Court in GS and Others v Hungary [2016] EWHC 64 (Admin). In the course of his judgment, Burnett LJ (as he then was) emphasised the importance of such assurances:

"35. The assurance is a solemn diplomatic undertaking by which the Hungarian authorities consider themselves bound. We have no evidence about whether Hungarian law would enable a beneficiary of the assurance to enforce it in legal proceedings, as a person with the benefit of a similar assurance given by the British Government might seek to do in public law proceedings relying on a substantive legitimate expectation. But to my mind the absence of such a remedy does not call into question the reliability of the assurance. It is binding as between the two countries concerned.

36. In my judgment there is no basis for concluding that the assurance given by the Hungarian authorities relating to the treatment of these appellants (and all those on the list or who might be added to it) will not be honoured. The presumption that it will be has not been displaced. The recent evidence suggest that it has in fact been honoured It follows that the grounds for believing that there is a real risk of treatment contrary to article 3 of the Convention arising from the pilot judgment in Varga in the absence of the assurance, have effectively been met by the assurance. I would dismiss this ground of appeal in each of the cases before us."

It is worth emphasising that these assurances came from the "Ministry of Justice of Hungary – acting as Central Authority" or, as Burnett LJ emphasised in the passage quoted above, from "the Hungarian authorities", and was binding as between the two countries. In other words, the assurances came from the executive branch of the State, indeed a department of the executive with particular responsibility for justice and for the prison establishment.

The Hungarian government has set about a programme of prison building and refurbishment, as well as instituting other measures designed to reduce the prison population. There are in Hungary two more modern prisons which do conform with the space requirements laid down in Muršic, as well as providing better conditions generally, those being the prisons at Szombathely and Tiszalök.

Following on from the programme of improvements, Hungary stated in May 2017 that specific or individual assurances were no longer needed in respect of extradition.

However, in April 2018, the Hungarian Ministry of Justice acknowledged, in respect of one of the Applicants in Varga, that he had been detained in a cell with eight people with net space for each prisoner of 2.8m². This concession led to the Hungarian authorities giving renewed specific assurances, affecting the individual considered in Fuzesi and another, in the following terms:

"The Ministry of Justice of Hungary and the National Headquarters of the Hungarian Prison Service, which has jurisdiction in Hungary to provide this binding assurance, guarantees that [the first appellant] will […] during any period of detention for the offences specified in the European arrest warrant, be detained in conditions that guarantee at least 3 square metres of personal space. [The first appellant] will at all times be accommodated in a cell in which he will personally be provided with a guaranteed personal space.

As of 1 January 2015, Hungary has signed, ratified and implemented the Optional Protocol to the UN Convention against Torture (OPCAT) and has set up The General Ombudsman as its National Preventative Mechanism. Accordingly, the General Ombudsman will monitor compliance with this assurance."

In other words, the Hungarian authorities moved from a position that no individual assurance was necessary, to once again give specific individual assurances. The Court in Fuzesi found that assurance reliable. They concluded (paragraph 37):

"37. …What is crucial, in our view, is that there is no evidence that any assurance to the UK in respect of an individual has been breached: see section VI of the letter dated 6 May 2018 which we have already cited from the Hungarian Ministry. That evidence is unequivocal and specific. The evidence cited by Mr Summers on the other side of the balance, namely paragraphs 161 to 165 of the HHC report, is both indirect and anonymous. Mr Summers fairly accepts that it is of limited value. It does not appear, at least not clearly, in our view, to relate to any individual extradited from the UK, although it should be observed, as we have already said, that paragraph 161 does refer to a person "of British nationality".

38. In our view, the failure to identify a specific prison as has been done in other cases, for example that of the second appellant, does not make a material difference. We do not find anything of material assistance in the opinion of the Advocate General in the reference from the Bremen court in ML. The issue which is before this court (as to whether an assurance from Hungary must specify the particular prison where a requested person will be detained) did not arise in that case. As Mr Summers appeared to acknowledge at the hearing before us, the opinion of the Advocate General is "neutral" on the issue that divides the parties in the present case."

The reference to the passage quoted above to the case of ML was to the opinion of the Advocate General to the CJEU in the preparatory phase of the case, now reported as ML v Hungary C-220/18 PPU of 25 July 2018. That case flowed from a referral to the CJEU by the Higher Regional Court, Bremen, Germany. As the Advocate General expressed it:

"68. That point is relevant because the referring court is uncertain whether, in order to form a view on ML's conditions of detention in Hungary, it may take into consideration information which it is not possible to verify if it comes from the issuing judicial authority itself or has been requested by that authority. (48)

69. According to the order for reference, that information was provided by the Hungarian Justice Ministry but the order does not state whether it was provided directly or through the issuing court. In the latter case, logically, the information would be relevant for the purposes of executing the EAW, provided that its legal value is derived from the fact that it has been accepted and endorsed by the issuing court.

70. The issuing and executing judicial authorities are the only active protagonists in the processing of the EAW. The executing court therefore has to send its requests for information to the issuing court, which has an obligation to respond to those requests. (49) The fact that the judicial authorities are the protagonists is without prejudice to the purely auxiliary role which, as necessary, may be played by the central authorities designated by the Member States under Article 7 of the Framework Decision. (50)

71. Accordingly, the executing judicial authority must take into account the information which has been provided to it by the issuing judicial authority or which, having come from the central authority (or one of the central authorities) of the issuing Member State, has been accepted and transmitted by the issuing judicial authority.

72. The foregoing must be interpreted without prejudice to the fact that the executing judicial authority may also rely on such information as it is able to obtain for the purpose of determining that there is 'information that is objective, reliable, specific and properly updated' (51) which is capable of demonstrating that there is a real risk of inhuman or degrading treatment.

73. That other information may be obtained by the executing authority in the course of the domestic procedure for dealing with the EAW, on the initiative of the person sought or the Public Prosecutor's Office which, in Germany, acts as the executing judicial authority. (52) Just as the information obtained by these methods must, in its entirety, undergo a careful assessment by the person who has requested it, (53) scrutiny of the information provided by the issuing court — whether directly or with the endorsement of its own authority — can extend only to confirmation of the origin of that information, given that, as regards the substance of that information, the trust on which mutual recognition is founded must, in principle, take precedence."

When ML came before the full Court, they considered the approach to information, and the source of such information, when an executing judicial authority is considering an Article 3 risk:

"60. To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated concerning the detention conditions within the prisons of the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the European Court of Human Rights, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations (judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraph 89).

…

62. Thus, in order to ensure observance of Article 4 of the Charter in the particular circumstances of a person who is the subject of a European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is then bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4, because of the conditions for his detention envisaged in the issuing Member State (judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraphs 92 and 94).

63. To that end, that authority must, pursuant to Article 15(2) of the Framework Decision, request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State. That request may also relate to the existence, in the issuing Member State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons (judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraphs 95 and 96).

64. The issuing judicial authority is obliged to provide that information to the executing judicial authority (judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraph 97)."

The Court also went on to consider the impact of the contemplated length of detention:

"97. It is true that the case-law of the European Court of Human Rights indicates that the length of a detention period may, as has already been stated in paragraphs 91 and 93 of this judgment, be a relevant factor in assessing the gravity of suffering or humiliation caused to a detainee by the inadequate conditions of his detention (ECtHR, 20 October 2017, Muršic v. Croatia, CE:ECHR:2016:1020JUD000733413, § 131).

98. However, the relative brevity of a detention period does not automatically mean that the treatment at issue falls outside the scope of Article 3 of the ECHR when other factors are sufficient to mean that it is caught by that provision.

99. The European Court of Human Rights has also held, that, when the detainee has space below 3 m², a period of detention of a few days may be treated as a short period. However, a period of around 20 days such as that envisaged in the case in the main proceedings by the authorities of the issuing Member State, which, moreover, may quite possibly be extended in the event of (undefined) 'circumstances preventing [that period coming to an end]', cannot be regarded as a short period (see, to that effect, ECtHR, 20 October 2017, Muršic v. Croatia, CE:ECHR:2016:1020JUD000733413, §§ 146, 152 and 154).

100. Accordingly, the fact that detention in such conditions is temporary or transitional does not, on its own, rule out all real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.

101. In those circumstances, if the executing judicial authority considers that the information available to it is insufficient to allow it to adopt a surrender decision, it may, as has already been stated in paragraph 63 of this judgment, request, in accordance with Article 15(2) of the Framework Decision, that the issuing judicial authority provide it with the supplementary information it deems necessary in order to obtain further details on the actual and precise conditions of detention of the person concerned in the prison in question."

The Appellant Zabolotnyi

Zabolotnyi's extradition is sought pursuant to an EAW issued by a judge of the Mateszalka District Court on 28 June 2017, and certified by the National Crime Agency ["NCA"] on 20 April 2017. The EAW is an accusation warrant, claiming that the Appellant Zabolotnyi obtained a false Hungarian passport in 2015. Zabolotnyi was arrested on 15 June 2017 and on 5 September 2017, District Judge Snow ordered his extradition, following a hearing at the Westminster Magistrates' Court. DJ Snow held that a prison assurance was not required in the case, on the basis that the presumption of compliance was, at that stage, restored.

On 27 April 2018, Zabolotnyi was granted permission to appeal by Ouseley J, who directed that the case should await the decision in Fuzesi.

On 20 July 2018, Zabolotnyi was given a personal assurance, issued by the Hungarian Department of Justice in the following terms:

"The Ministry of Justice of Hungary and the National Headquarters of the Hungarian Prison Service, which has jurisdiction in Hungary to provide this binding assurance, guarantees that the person known to the Hungarian authorities as Zoltan DANI, his real name ZABOLOTNY OLEKSANDRY (born known as in Uzhhorod, known as on the 12^th July 1987, known as Ukranian – Hungarian national) will, if surrendered from Scotland, Northern Ireland, England and Wales pursuant to the Hungarian European arrest warrant No. 11.Bny.265/2016/2. Issued by the Court of Mátészalka, during any period of detention for the offences specified in the European arrest warrant, be detained in conditions that guarantee at least 3 square metres of personal space.

The person known to the Hungarian authorities as Zoltan DANI, his real name ZABOLOTNY OLEKSANDRY will at all times be accommodated in a cell in which he will personally be provided with the guaranteed personal space.

It is guaranteed that the person known to the Hungarian authorities as Zoltan DANI, his real name ZABOLOTNY OLEKSANDRY will be accommodated either in the Penitentiary Institute of Szombathely or in the Penitentiary Institute of Tiszalök, after his surrender to Hungary."

The Appellant Szalai

The Appellant Szalai's extradition is sought pursuant to an EAW issued by the Tribunal of Veszpre, Hungary on 15 February 2018 and certified by the NCA on 27 March 2018. The warrant relates to a conviction in relation to two joint enterprise offences of theft. The judgment became final on 30 October 2012 and sentence to be served is one year in prison. Szalai was arrested on 8 May 2018 and remanded in custody, where he has remained throughout. Following earlier provision of information, a specific assurance was given in relation to the Appellant Szalai on 7 June 2018 in the following terms:

"… the Ministry of Justice of Hungary provides you with the following guarantee in connection with the surrender proceedings being conducted in the United Kingdom on the basis of the European arrest warrant No. Szv.925/2012/9 issued by the Regional Court of Veszprém:

The Ministry of Justice of Hungary and the National Headquarters of the Hungarian Prison Service, which has jurisdiction in Hungary to provide this binding assurance, guarantee that Szilveszter Ferenc Szalai (born 31/12/1972 in Veszprém, Hungary, Hungarian national) will, if surrendered from Scotland, Northern Ireland, England and Wales pursuant to any of the above Hungarian European arrest warrants, during any period of detention for the offences specified in the European arrest warrants, be detained in conditions that guarantee at least 3 square metres of personal space. Szilveszter Ferenc Szalai will at all times be accommodated in a cell in which he will personally be provided with the guaranteed personal space."

The extradition hearing in relation to Szalai took place before DJ Snow on 23 June 2018. The Appellant took no point on Article 3 in the course of the hearing, but the Court considered prison conditions pursuant to the section 21 consideration. The Court noted the assurance provided in the terms quoted above and DJ Snow concluded that there was "no real risk of the RP being held in conditions which might violate Article 3 of the ECHR with such an assurance in place".

DJ Snow also considered this Appellant's Article 8 rights. In that context it was relevant that this Appellant had been found guilty of an offence of stalking. His appeals against conviction and sentence failed, and he was sentenced to 26 weeks' imprisonment before the Isleworth Crown Court on 8 December 2017. He had mental health difficulties. On 23 March 2018, the Home Secretary took the decision to deport him on the ground that he had "committed a serious criminal offence in the United Kingdom and … there is a real risk that [he] may reoffend in the future". No evidence was adduced before the Court to challenge the presumption that Hungary would provide adequate treatment for this Appellant's medical conditions. DJ Snow found as a fact that:

"The only evidence of the RP's alleged suicidal tendencies comes from him and is entirely self-serving. He has produced no corroborative evidence. His evidence has not crossed the high threshold. He has failed to demonstrate that there is a real risk to his physical or mental condition if he is extradited. He has not rebutted the presumption. I reject this challenge."

The Issue

As we have indicated above, the outstanding issue common to these cases is the reliability of the assurances offered by Hungary. The terms of the assurances are not challenged. The basis of the challenge rests in large measure upon the suggestion that fresh evidence demonstrates earlier breaches of assurances by Hungary.

Further Evidence

The first fresh evidence sought to be introduced was brought before the Court granting permission to appeal, in the form of a witness statement from a Mr Gabor Bagdi of 1 October 2018. Bagdi was an extraditee removed from England to Hungary and his witness statement gives a description, on his account, of the conditions he met following extradition. His evidence is no longer relied on, since it is conceded, following a detailed letter from the Hungarian Ministry of Justice, that he was at all times held in conditions with sufficient personal space and for that reason his account is not reliable.

The Appellants now seek to rely on the evidence of Dr András Kádár. Dr Kádár is a Hungarian attorney. He is the co-chair of the Hungarian Helsinki Committee ["HHC"], a human rights watchdog which maintains a focus on detention conditions in Hungary. Between 1999 and 2009, he himself participated as a monitor in the HHC's prison monitoring programme in Hungary. From 2009 he was excluded from prison monitoring, since the Hungarian authorities altered the rules so as to exclude attorneys who had clients in any of the relevant penitentiary institutions. Dr Kádár had such clients and, indeed, has litigated prison conditions cases, both in Hungary and in Strasbourg. According to the introduction of his first report, Dr Kádár has continued unofficially, and sporadically, to observe prison conditions in Hungary on an ad hoc basis.

Dr Kádár has submitted two reports, one dated 13 October 2018 with an addendum report of 14 November 2018. Although these reports to some degree deal with other conditions than the amount of personal space accorded, the thrust of the evidence is to suggest that assurances have not been observed in relation to personal space. As we have already indicated, we agreed to consider this evidence de bene esse since it is advanced as being potentially highly significant on that point. Dr Kádár refers to extraditees from Germany, as well as the United Kingdom.

The Appellant's solicitor, Mr Stevens, has provided a witness statement of 23 November 2018, indicating that the reports from Dr Kádár were commissioned in a different case (Hungary v Garamvolgyi), no doubt since a similar point was to be taken in that case Mr Stevens indicates that it was not sensible to seek a separate report on the same issue, and hence Dr Kádár's report is sought to be introduced here. What the statement does not do is to give any explanation as to why Dr Kádár's report was not obtained earlier. However, although the Respondents do object to admission, it appears to us unlikely that this evidence could have been obtained before the extradition hearings in these two cases.

The Expertise and Standing of Dr Kádár

In the course of correspondence, the Hungarian authorities have raised the question as to whether evidence should be admitted from Dr Kádár since, according to their procedural law, an attorney active in a given field should not be heard as an expert in their courts. In our view, this is not a material consideration here. Admissibility of such evidence must be decided by English law. We see no objection to the admission of this evidence on that ground.

Citation of Alleged Breaches of Assurances to Other Countries

In the cases of extradition from Germany (Szikszai and Kulscar), on which the Appellants seek to rely, they allege that in both cases Hungary failed in the event to comply with the assurances that had been given, and following their extradition, held the persons concerned in conditions which violated Article 3. The Appellants contend that the evidence in respect of the two German cases is admissible, and that it gives real support to their case that the relevant assurances given by the Hungarian authorities cannot be safely relied upon by this Court.

Mr Hall QC, on behalf of the Appellants, submitted that there was no rule of law which, as a matter of principle, precluded this Court from admitting the evidence, and, if admitted, from giving it such weight as the Court thought fit. Mr Hall referred to Patel v Government of India & SSHD [2013] EWHC 819 (Admin), with a view to demonstrating that no special considerations arose by reason only of the fact that an alleged breach was of an assurance given, not to the UK authorities or to a UK court, but to a foreign authority or court.

Mr Hines QC, on behalf of the Respondents, conceded that there could be circumstances where, exceptionally, proven or admitted breaches of assurances given to other states would or might be relevant. However, he submitted that the UK court was not the appropriate forum to make factual or evidential findings in relation to whether such alleged breaches have taken place.

In our view, Mr Hines was right to make his limited concession. If a serious issue has been raised as to whether another State will in fact treat a person extradited from the UK in accordance with Article 3, this Court is not precluded by any rule of law from having regard to any material evidence bearing on that issue. The CJEU in ML at paragraph 60 (set out above) does not in terms provide an exhaustive statement of the forms of proof that may properly be relied on if a serious issue of that nature has been raised.

However, we believe that this Court should exercise very considerable caution when asked by an appellant to admit and to evaluate evidence relating, not to an alleged breach of an assurance given to the UK authorities or courts, but to foreign authorities or courts, for the following reasons.

Firstly, in ML the CJEU emphasised that the task of the executing judicial authority was to assess "solely the actual and precise conditions of detention of the person concerned". The focus therefore must be on the question whether the issuing state can be relied upon to comply with an assurance given to the UK, and on that question alleged breaches of past assurances given to the UK are of obvious and central relevance. That indeed has been the general approach of this Court. For example, Singh LJ stated in Fuzesi (paragraph 37): "What is crucial, in our view, is that there is no evidence that any assurance to the UK in respect of an individual has been breached".

Secondly, there are likely to be real practical difficulties when and if this Court were to embark on an exercise of evaluating evidence in respect of alleged breaches of assurances given to foreign authorities or courts. This Court may well not have before it all relevant information, including the specific terms of any relevant assurances, the exact nature and full scale of any alleged breaches, the full context in which any breach may have occurred, the position of the foreign state, and detail of any remedial action on the part of the foreign state. Furthermore, there might have been legal proceedings, or might be pending legal proceedings, in the state to which the assurances in question were given, and proper account would need to be taken of any such proceedings. It might also be the case that similar assurances were given to one or more other states, opening up the potential for very extensive investigation which this Court would be reluctant, and ill-equipped, to carry out.

Although this Court has power, under Article 15 (2) of the Framework Decision, to request relevant information from foreign authorities, and those authorities are obliged to respond (Aranyosi, at paragraph 97), the practical difficulties would not necessarily disappear, and the extradition proceedings would thereby inevitably be prolonged.

The practical difficulties are illustrated to some extent by the present appeals. By letter dated 7 November 2018 the Ministry of Justice replied to the letter dated 25 October 2018 from the CPS, stating in effect that Hungarian domestic law prohibited the Ministry of Justice from providing relevant information to the UK regarding German cases. This response was challenged by the Appellants, and resulted in DLA Piper, on joint instruction of the Appellants, giving an expert legal opinion on Hungarian data protection law. DLA Piper advised that there could well be a sound legal basis for the Ministry to provide personal information to the UK on any person extradited from the UK, but there was no such basis for providing such information to the UK on any person extradited from another State (such as Germany). As matters stand therefore, there is before the Court no substantive response from Hungary in respect of the two German cases relied upon by the Appellants.

As to Patel, the material circumstances were well known and uncontroversial. It was manifest that Portugal and India took a different view of what specialty required, and the position of India vis-a- vis an extradition from Portugal gave no support at all for the contention that India would not comply with an assurance to the UK in respect of specialty. Patel was a case on its own special facts, and cannot be relied upon for the wide proposition advanced by Mr Hall. In the present context it is perhaps not without interest that the clear decision in Patel was insufficient to deter a subsequent appellant from repeating the same argument, with leading counsel putting before the court what purported to be further and better information about the Portuguese extradition. The Divisional Court (President of the QBD, Blake J) did consider the material but firmly rejected the argument, highlighting the scope for fruitless forensic ingenuity once extradition proceedings in a foreign jurisdiction have been brought into play: Shankaran v Government of India & SSHD [2014] EWHC 957 (Admin).

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 is manifestly credible, is directly relevant to the issue to be decided and of real importance for the purpose of that decision, before the Court should be invited to admit and consider such evidence.

Article 3: Substantive Points

Against that background we turn to consider the merits of the Article 3 argument advanced by these Appellants. It depends entirely on the fresh evidence they seek permission to adduce and rely on.

In the UK cases, the Hungarian authorities provide assurances individually for each requested person. Some assurances simply guarantee 3m² of personal space; others also guarantee detention at one of the two privately run prisons in Hungary, namely Szombathely and Tiszalök National Prisons. Both of these prisons are internationally recognised as having never suffered from overcrowding as a result of the contracts which their private owners have with the Hungarian government. This is accepted by Dr Kádár, and by his colleagues from the Hungarian Helsinki committee who have provided reports in other Hungarian cases (including Fuzesi).

The Appellants contend the evidence establishes breaches of assurances issued by the Hungarian authorities. Furthermore, they say the evidence of breach is significant in the context of an overall assessment of the reliability of the present assurances issued to the Appellants themselves: it demonstrates that the present assurances do not effectively meet the risks to these Appellants. There remains a real risk that their surrender will lead to a violation of their Article 3 rights. The result is, they submit, that something has gone wrong with the system of Hungarian assurances and either the appeal should be allowed or at the very least there is a need for further and better assurances.

We consider first the evidence concerning three individuals extradited by the UK to Hungary: Ahmed Salikh, Joszef Szabo, and Tamas Kiss. In response to evidence about these individuals, two letters dated 8 November and 3 December 2018 from the Ministry of Justice of Hungary have been served. The Appellants have proceeded on the assumption that the facts contained in the letters (with one exception, relating to Mr Kiss, which appears to be an error on the face of the document) are correct. On that basis the Appellants contend that the response overall supports the admission of the evidence relating to Szabo, Salikh and Kiss; and there is no need for cross-examination.

Jozsef Szabo

Mr Szabo was extradited from the UK on 23 March 2016. Although it was initially suggested by the Hungarian Ministry of Justice that it was not aware of any guarantee provided in his case, the letter of 3 December 2018 refers to a "provided guarantee" and it is now accepted that an assurance was provided to the UK that he would have at least 3m² of personal space at all times during any detention.

Two breaches of this assurance are relied on by the Appellants. First, it is said that between 23 March and mid-April 2016 he was detained for one to two weeks in Unit III of the Metropolitan Penitentiary Institution, in a cell that was 13.5m² and shared by five individuals, leaving 2.7m² of space per person. Secondly, from 3 to 8 May 2016 it is said he was detained for six days in a cell measuring 19.7m² and shared with at least seven others, leaving 2.81m² of space per person. There is no dispute that Mr Szabo has been held under CPT compliant conditions at all times since 17 May 2016, first in Szombathely National Prison and then in Tiszalök National Prison.

There is no challenge to these breaches. The Ministry of Justice admits that between 24 March 2016 and 17 May 2016 (at which point he was transferred to Szombathely National Prison) there were "short periods - lasted for a few days – when [he] did not have 3m² personal space in his cell". Since no detail is given as to the number of periods, or the number of days, in which these breaches occurred, or the amount of personal space provided, we proceed on the basis of two periods of breach: the first lasting up to two weeks, and the second six days as the Appellants allege.

The response from the Ministry of Justice states in relation to the alleged breaches as follows:

"We would like to note that CPT and the ECHR differentiate short-term detention (up to a few days) to longer detention when examining inhuman and grading treatment. According to the CPT minimum standards sheet… "CPT has never considered that its cell size standards should be regarded as absolute. In other words, it does not automatically hold the view that a minor deviation from its minimum standards may in itself be considered as amounting to inhuman and degrading treatment of the prisoner(s) concerned". "Conditions of detention could be considered as amounting to inhuman and degrading treatment, the cells either have to be extremely overcrowded or, as in most cases, combine a number of negative elements".… Considering the aforementioned reasons, altogether we consider the provided guarantee complied…."

Mr Hall submits this is a remarkable attempt to excuse non-compliance with the assurance given to the UK, by making an argument about what amounts to inhuman and degrading treatment, leading to the non sequitur conclusion "…altogether we consider the provided guarantee complied with". Furthermore the argument overlooks the explanation in Muršic that a violation of Article 3 in these circumstances would not be rebutted merely by explaining that there were only short term reductions in the required minimum space.

We have noted above that the ECtHR in Muršic made clear that where the personal space available to a detainee falls below 3m² of floor surface in multi-occupancy accommodation in prisons, the strong presumption of a violation of Article 3 will normally be capable of being rebutted if three factors are cumulatively met (see paragraphs 137 and 138). These are, first, the reductions in the required minimum personal space of 3m² are short, occasional and minor. Secondly, such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out of cell activities. Thirdly, the applicant is confined in what is, when viewed generally, an appropriate detention facility and there are no other aggravating aspects of the conditions of his or her detention. In light of the response from the Ministry of Justice, it does seem to us that the evidenced breaches can properly be viewed as short and occasional in context, occurring as they did, in the early period of the detention, and remedied reasonably promptly.

Tamas Kiss

Mr Kiss was extradited from the UK on 24 May 2016, subject to an assurance that he would be provided with 3m² of personal space. The Appellants initially relied on a single breach of that assurance; namely when in Tököl National Prison, it is alleged that he was detained for five months in a 20 m² cell with between 12 and 16 inmates, allowing only 1.66 to 1.25m² per person of personal space.

The response from the Ministry of Justice disputes this allegation. They detail the size of the prison cell in which he was detained from 13 June 2016 to 19 September 2016 as ranging from 30-33m², and the number of inmates as ranging from 7-10 people. They deny that he was ever detained with 12 to 16 people. Accordingly, they say that Mr Kiss, who was initially placed in Tököl National Prison on 13 June 2016, was detained in accordance with the provided prison assurance at all times.

They go on to state that, in order to be able to comply with the prison guarantee in the long term, Mr Kiss was to be transferred to Szombathely National Prison where the general detention conditions are CPT compliant. However, before the scheduled transfer, he requested cancellation of the transfer and stated in writing he would not make complaints in connection with detention conditions. He was not transferred accordingly. He nonetheless made a complaint about the detention conditions on 9 September 2016 through his legal representative. His detention conditions were examined and the complaints were dismissed on 17 October 2016 on the basis (as set out above) that he had been held in accordance with the provided prison guarantee (having personal space of at least 3m²) at all times.

The Appellants take issue with the statement that Mr Kiss was at all times provided with at least 3m² of personal space. They contend that there are two periods, 1 July 2016 to 31 July 2016 and the period 17 August 2016 to 19 September 2016 in which it is said that Mr Kiss was held in a cell of 30m² with 10 inmates, with no deduction made for sanitary facilities. Mr Hall maintains there was a breach of the assurance because sanitation (toilet facilities) must be excluded from the calculation of space: see Muršic.

We do not accept this submission. The judgment in Muršic was promulgated on 20 October 2016 and post-dates the detention in Mr Kiss' case. As Dr Kádár states in his report dated 13 October 2018, the basis for calculating minimum personal space changed with effect from 1 January 2017, so that thereafter the area occupied by the toilet and sanitary unit was not to be included in the calculation (see paragraphs 10 and 11). There is every reason to believe that the Hungarian Ministry of Justice changed the calculation methodology from then onwards as required by Muršic. It seems to us (in agreement with Mr Hines) that it would be unreasonable to apply this changed methodology retrospectively in order to demonstrate breach of an assurance, when it would not have been considered a breach at the relevant time.

The response from the Ministry of Justice also states:

"Since Tamas Kiss's transfer to the Szombathely National Prison – where more comfortable placement would have been possible – was cancelled on the basis of his explicit request after he was informed on its consequences, it does not seem fair attitude that Tamas Kiss made complaints on his detention conditions both before the Hungarian and British authorities, since his less comfortable placement was the result of his own request.…".

We consider this to reflect a significantly misguided approach, albeit not a deliberate intention to breach the assurance given. While the grant of Mr Kiss's request did not, in his case, amount to an overriding of the assurance given to the UK, we emphasise that solemn undertakings given to the UK by way of assurances cannot be interpreted as permitting exceptions to be made in cases where a prisoner makes a request of this sort. The assurance is a binding undertaking given to the United Kingdom, not a bargain with the prisoner. The request to cancel the scheduled transfer should either have been refused by the Hungarian authorities, or if accommodated, the obligation to comply with the assurance given to the UK subsisted. We do not consider it appropriate for a prisoner to be asked to waive his rights to make complaints in these circumstances.

Mohammed Ahmed Salikh