In Fuzesi and Others [2018] EWHC 1885 (Admin), the Divisional Court dismissed the Hungarian prison conditions appeals. They adopted GS v Hungary [2016] 4 WLR 33 and decided that there had been no material factual change since then and that failure to identify a specific prison does not make a material difference.

An application to reopen the appeal was surprisingly refused following the CJEU judgment on 25th July 2018 in ML (Generalstaatsanwaltschaft Bremen) C-220/PPU. This judgment may have important implications for future cases.

ML (Generalstaatsanwaltschaft Bremen) C-220/PPU:

Following the Divisional Court judgment, on 25 July 2018, the CJEU gave judgment in ML (Generalstaatsanwaltschaft Bremen) C-220/PPU.  ML holds that, in the context of systemic Article 3 violations assurances may be provided and relied upon, but that they must specify the prison in which the appellant will be detained and do more than baldly guarantee compliance with Article 3 ECHR (unless there are no concerns about conditions there).

In a subsequent application to reopen the appeal Fuzesi submitted that ML is binding and that GS v Hungary which was applied by the Divisional Court is contrary to ML. The application was refused.

ML concerns a Hungarian EAW being executed in Germany. The German court sought information from Hungary concerning the prison(s) in which ML would be detained, and of prevailing conditions there. Hungary informed the German court that ML would be detained at (a) Budapest central prison for a period of up to three weeks, (b) then at Szombathely prison for the duration of his sentence, but (c) that he might potentially be transferred to other prisons.

As accepted in Fuzesi, detention at Szombathely prison involved no Article 3 violation. However, detention at other prisons would as a result of the systemic and ongoing violation of Article 3 conditions throughout the remainder of the prison estate. The German court therefore issued a list of requests for information to Hungary in respect of (a) Budapest prison and (b) other prisons to which the defendant might be transferred, which Hungary declined to answer. Instead, Hungary provided ‘an assurance that the person concerned, irrespective of the facility he is detained in, will not be subject to any inhuman or degrading treatment within the meaning of Article 4 of the Charter, as a result of his detention in Hungary’. It was the adequacy of this assurance, against the requirements of Article 4 of the EU Charter, that was considered by the CJEU.

Two main issues arise:

One: Assurances ‘must’ review conditions in the specific prison(s) in which the defendant will be detained.

The court held that these requirements do not require or permit the executing court to concern itself with those prisons at which the defendant only ‘might’ or ‘possibly’ be detained (in that case, prisons to which the defendant might be transferred in the future). The CJEU went on to explain the executing court’s obligations in respect of those prisons at which the defendant is ‘likely’ to be detained.

The court proceeded to hold that the executing court is ‘required to assess the conditions of detention in the prisons in which, according to the information available to them, it is actually intended that the person concerned will be detained’ and ‘must review the conditions of detention of the person concerned in those…prisons.’  The executing judicial authority can also ‘request information or give assurances concerning the actual and precise conditions in which the person concerned will be detained in the issuing Member State’.

Two: Bald assurances may be acceptable - but only in certain circumstances.

The problem in ML was that, for Budapest prison, Hungary had done no more than provide a bald assurance of general Article 3 compliance. The court held that such an assurance may be acceptable for a specific prison unless there exists ‘specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter’. On the facts in ML there was nothing to suggest this in relation to Budapest prison.

It is therefore clear from the judgment of the CJEU that in a case concerning systemic ongoing violation, Article 3 ECHR / Article 4 Charter requires the issuing state to specify exactly where the defendant is going to be detained, and provide specific information / assurances concerning conditions there. Only where there are no indications of any violation at that prison will general assurances of Article 3 compliance (as were accepted in GS and Fuzesi and Others) be acceptable.

For future cases it is arguable that the ML judgment is inconsistent with the proposition that the court may sanction extradition on the strength of a bald non-prison-specific Article 3 assurance concerning potential detention at any prison. 

Natasha is a leading extradition barrister who acts for both foreign governments and requested persons.  Natasha is ranked as Band 2 barrister in Chambers and Partners as a leader in the field of extradition at the London Bar. Natasha is ranked as a Tier 2 leading individual in the Legal 500 in the field of International Crime and Extradition at the London Bar.