Will the Zabolotnyi judgment assist those trying to prove breaches of assurances of Article 3 ECHR non-compliant prison conditions? .

In some ways the Zabolotnyi judgment handed down by the Supreme Court last Friday was underwhelming: the High Court considered the evidence incorrectly, but were ultimately right in the decision they came to.

However, there was a nugget of hope for Article 3 ECHR prison conditions cases at paragraphs 48 and paragraph 50.

At 48 the Supreme Court held there is

“no justification for adopting a different test of admissibility of evidence of a breach of a prior assurance given to a third state or for otherwise limiting the ability of an applicant to rely on such evidence. As I have indicated, I can find no trace of authority for such an approach in the case law of the ECtHR, the CJEU or of our domestic courts. If such evidence is relevant and probative is should be admissible”

And the set out plainly at paragraph 50 what approach the Court should have taken

“There exists no special rule of admissibility or other heightened legal test which prevents an appellant from relying on evidence of breach of assurances given to a third state. The approach of the Divisional Court (at para 44) which requires that it be satisfied that the evidence is manifestly credible, directly relevant and of real importance is wrong in principle. Such evidence should be approached on the same basis as any other evidence of breach of such undertakings by the requesting state. Thereafter, the weight to be given to such evidence 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.”

These paragraphs make it clear that

1. Evidence from a third country (i.e not the UK) about a breach of one of their assurances is admissible if it’s relevant
2. There is not a different test of admissibility required for such evidence
3. If you want that evidence to work – it needs to be robust.

In reality despite paragraph 44 of Szalai v Hungary [2019] EWHC 934 (Admin) I don’t think defence lawyers stopped trying to get third party evidence on breaches of assurances, especially as the Court did consider the evidence de bene esse in any event.

Proving breaches of assurances is difficult given that frequently it relies on a previously extradited person, who is convicted and sentenced, providing evidence that they have not been held in appropriate conditions. As the Divisional Court held in Szalai v Hungary [2019] EWHC 934 (Admin) at paragraph 72, even if you have some of this evidence, it won’t necessarily be enough to rebut the presumption of compliance.

However, the judgment in Zabolotnyi does perhaps give lawyers a wider scope to try and obtain evidence, and clearer guidance on what evidence might be sufficient. Given the number of European Union countries that provide assurances on Article 3 ECHR this judgment is perhaps an opportunity to gather a dossier of evidence to demonstrate breaches in multiple jurisdictions. But, it would appear that any evidence would need to be very clear and certainly include the original assurance from the third state and good complaint evidence which showed a clear Article 3 ECHR breach (for example less than 3m2. Now, how can one get hold of that...