High Court dismisses surrender objection and orders Respondent's return to Romania to serve prison sentence.

THE HIGH COURT

[2025] IEHC 559

BETWEEN Record No 2024 EXT 261

MINISTER FOR JUSTICE

APPLICANT

v.

GHEORGE BORDEA

RESPONDENT

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 6 August 2025

A. BACKGROUND

1. The applicant seeks the surrender of the Respondent to Romania on foot of a European Arrest Warrant [‘EAW’] dated the 8 October 2024, in order to serve a sentence of one years imprisonment, imposed by the Ploesti Court of Law on the 8 May 2023 and confirmed on appeal by the Ploesti Court of Appeal on the 12 September 2024.

2. The statement and particulars of the offence are set out in paragraph (e) of the EAW.

The sentence was imposed for one offence of ‘Driving a vehicle without a driving licence, provided for by Article 335(1) of the Criminal Code, with the application of the Criminal Procedure Code’. The particulars of the offence are that, on the 14 October 2019, Mr Bordea ‘drove the car make Audi with the registration number B- 299-DGS, on public roads without having a driving licence and caused a traffic accident resulting in material damage’

3. This is not an offence which is covered by the list of offences set out in Article 2.2 of the Framework Decision. It is therefore necessary to demonstrate correspondence in accordance with s. 38 of the 2003 Act.

4. Section 5 of the European Arrest Warrant Act, 2003 Act [‘the 2003 Act’] provides:-

‘For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State’.

5. The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence – Minister for Justice v Dolny [2009] IESC 48.

6. No issue is taken by the Respondent in relation to correspondence. I am, in any event, satisfied that the acts or omissions that constitute the offences on the warrant correspond with the offence of Driving without a licence contrary to Section 38(1) of the Road Traffic Act, 1961 (as amended).

7. The EAW was issued by Judge Neagu Elena Gabriela, Judge of the Ploesti District Court, an Issuing Judicial authority [‘IJA’] within the meaning of the 2003 Act and the Framework Decision.

8. I am satisfied that there are sufficient particulars set out in the Warrant such that it complies with s. 11 of the 2003 Act and the requirements of the Framework Decision.

9. I am satisfied that none of the matters referred to in sections 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

10. At Paragraph D of the EAW, it was stated that the Respondent did not appear in person at the ‘trial resulting in the decision’. The IJA, however, rely on paragraphs 3.1a and

3.2 of the EAW, stating as follows therein:

‘3.1a the person was summoned with a bench warrant for the trial dates of 14.09.2022, 26.10.2022, 26.10.2022, 14.12.2022, and with a bench warrant and by posting at the court premises for the trial dates of 01.02.2023 and 15.03.2023….and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he does not appear for the trial; or …….

3.2 being aware of the scheduled trial, the person had given a mandate to a legal counsellor; who was appointed by the state, to defend him at the trial, and was indeed defended by that counsellor at the trial, in the person of counsellor Constantin Eduard, at the trial dates of 01.02.2023 and 15.03.2023’

B. SECTION 20 REQUESTS

First s. 20 Request

11. On the 2 January 2025 a request for further information was sent to the IJA pursuant to s. 20 of the 2003 Act [‘s20 Request’] seeking inter alia the following:-

‘3. In relation to Part D of the Warrant, please specify:

a) Whether the Respondent was present for the decision of the trial court on the

12 September 2024;

b) If he was not present, whether he was made aware of the hearing date and that the trial would proceed in his absence if he did not attend;

c) If he was not present, how he was notified of the hearing date, for example by way of summons. If the Respondent was summonsed, please specify whether he was served personally and / or the address to which the summons was directed’

12. A detailed response, dated the 8 January 2025 was received in reply stating as follows:-

‘b) the defendant was summoned as follows:

At the trial date of 06.07.2023 it was ordered:

To adjourn the trial of the case and grant a trial date for 04.09.2023, 11.00 hours, for which date the appellant-defendant was summoned at the address where he indicated that he actually resides …..[ADDRESS SET OUT]…and by telephone note, to the number he indicated, and also by posting at the court premises.

At the trial date of 04.09.2023 it was ordered:

Issuance of a notice to the National Administration of Penitentiaries, as well as to the General Inspectorate of the Romanian Police, in order to find out whether the appellant-defendant is in detention Issuance of the criminal record concerning the defendant – appellant Bordea Gheorge…….by the clerk appointed to the Ploesti Court of Appeal to access the criminal record database To issue an arrest warrant in the name of the appellant-defendant To summon by posting at the court premises, by telephone note to the telephone number he indicated and to [ADDRESS GIVEN]’…….’

13. In reply to Paragraph 3(c) of the s20 Request the IJA stated:-

‘c) the date of the hearing shall be deemed to have been brought to the defendant’s knowledge by the completion of the summonsing procedure with him, as he was summoned (see above); he is not expressly informed that the hearing will continue in his absence if he fails to appear, but if the summoning procedure is legally complied with, the trial shall continue in the absence of the defendant if he fails to appear’

14. The response continued setting out the orders of the court made on trial dates of 02.10.2023. 01.11.2023, 11.12.2023, 14.12.2023, 09.01.2024, 08.02.2024 leading to the affirmation of the conviction on appeal and the final pronouncement of sentence by the Ploiesti Court of Appeal on the 12 September 2024.

Second s.20 Request

15. A second s. 20 request issued on the 21 January 2025 which, having referred to the EAW and the response to the first s. 20 Request, sought the following information:-

‘1. Can you confirm that the Respondent was unequivocally informed that the proceedings could proceed in his absence and convicted in his absence. If so, how?

2. Can you outline what ‘posting at the court premises’ entails and/or the procedure in relation to the same?’

16. In its reply of the 27 March 2025, the IJA stated: -

‘1. The defendant was informed of his rights and obligations in the course of the criminal prosecution by means of a written record, under signature. Thus, he was informed that he has the obligation to inform the judicial body of any change of address within 3 days, otherwise, the procedural documents communicated to the first address will remain valid and the defendant will be deemed to have acknowledged them.

Therefore, the defendant was lawfully summoned, and the court having taken all legal steps in this regard, his absence could not lead to further impeding the trial of the case and a decision on conviction was rendered in the absence of the defendant, with the legal provisions being fully complied with He was also informed to the charges brought against him during the criminal proceedings, which presumes that he was unequivocally aware that judicial proceedings were being brought against him and that he had an obligation to appear before the judicial authorities.

2. Posting at the court premises is a covert method of publicity, where the judicial document to be served is displayed in a visible and publicly accessible location at the court premises. This citation procedure is used cumulatively with the summons to the person’s domicile’

Third s. 20 Request

17. A third request issued on the 22 April 2025 in which the following was stated:-

‘Please note that the Respondent in this case has stated that he was not aware of the criminal proceedings in being, and that he was never informed that the trial of the matter could proceed in his absence.

In light of this, and in order to further consider the case, THE HIGH COURT RESPECTFULLY REQUESTS the following further additional information from the Issuing Judicial Authority within 7 days of receipt of this request:

1. Can you confirm that the Respondent was personally served with information which indicated to him that a trial could proceed, including to conviction, in his absence?

2. If the answer to question 1 above is no, can you please indicate how and when the Respondent was so informed that the matter could proceed, including to conviction, in his absence.

3. In your response of the 27 March 2025, you indicated that the Respondent had been ‘informed of his rights and obligations in the course of the criminal prosecution by means of a written record, under signature’. Can you please provide a copy of this written record?’

18. In their reply of the 23 April 2025, the IJA indicated as follows:-

‘…., we hereby inform you that the defendant has been personally served with information indicating to him that if he fails to notify any change of address within 3 days, the summonses and any documents served at the first address shall remain valid, and he shall be deemed to have acknowledged them.

It is therefore clear that he was informed that the proceedings would also continue in case he absconds.’

19. Attached to that reply were a number of documents which included a report of Deputy Chief Office Mancila Iulian of the Ploiesti Police Road Office, dated the 2 June 2021, in relation to this matter. In that report DCO Iulian says that pursuant to Articles 309(2)

and 108 of the Criminal Procedure Code he informed the Respondent ‘of the facts that on 02.06.2021 the criminal proceedings were initiated against him for committing the offense of driving a vehicle on public roads by a person who does not possess a driving license, provided for and punishable by Article 335(1) of the Criminal Code, because on 14.10.2019, at around 16.20, he drove the car…… [without possessing a driving licence]’.

20. In that same report DCO Iulian goes on to says that he also then informed the defendant of his procedural rights under Articles 10 and 83 of the Romanian Procedure Code.

These included the right not to make any statement during the ‘criminal proceedings’, the right to inspect the file, the right to have an attorney of his own choosing and the right, where this is required, to have a lawyer appointed ex officio and the right to , make any other requests connected with the criminal and civil aspects of the case’.

21. He was then informed of his obligations under Article 108(2) of the said Code, as follows:-

a) the obligation to appear when summoned by the judicial authorities, being warned of the fact that if he fails to fulfil this obligation, a bench warrant may be issued against him, and if absconds, the judge may order his detention on remand;

b) the obligation to notify in writing any change of address within 3 days, being informed that, if he fails to do so, the summonses and any other documents served on him at the first address shall remain valid, and he shall be deemed to have acknowledged them’

22. Finally, the report records:-

‘In application of the provisions of Article 108(4) of the Criminal Procedure Code, I have informed the defendant of the possibility of concluding, during the criminal proceedings, a plea agreement, following the admission of guilt’

C. GROUNDS OF OBJECTION & AFFIDAVITS OF RESPONDENT

23. The Respondent objects to surrender on the following two grounds:-

(i) The Warrant does not comply with s. 45 of the 2003 Act; and

(ii) Correspondence is not made out specifically insofar as it relates to sentence.

24. The Respondent filed a number of affidavits in these proceedings. In his first affidavit, dated the 10 February 2025, he inter alia stated:

(a) He was unaware that a decision was ever made to charge him with the offence in question and unaware of any pending proceedings;

(b) He was never informed or made aware of these criminal proceedings in both the Ploetsi Court of Law, or the Ploetsi Court of Appeal and he did not attend at any court dates in either the initial or appellate proceedings as he was unaware of the scheduled trial dates;

(c) He gave no mandate to any Legal Counsellor and has no knowledge of Counsellor Constantin Eduard, who it is alleged he nominated to act for him in these proceedings;

(d) He was not informed of, nor did he receive any summons and/ or bench warrant and/ or notification of the trial at first instance and he did not therefore appear at any of the dates when the matter was listed for hearing in Ploetsi Court of Law;

(e) He was not informed of or served personally, or at all, with any notification of the

decision of the Ploetsi Court of Law. He never received any notification, personally or through any member of his family or in any other manner, any notification of the

decision or of his right to a retrial or appeal;

(f) He attended the local police station on the 14 October 2019 along with the Complainant to report the incident. A report was drawn up, his contact details were taken, and he was told he would be contacted by the police and was not given any documents;

(g) Following contact by the police he attended the local police station to give his statement regarding the incident. Once again, he was told that the police would be in contact with him if required. He was not informed of any obligation to inform the police of any change of address. He was never informed or given notice of any charges;

(h) He lived at the address provided to the police, Aleea Prislop nr 2 Ploetsi Prhova, from July 2018 to February 2020 and had no contact with his landlord or the new tenants following leaving that address;

(i) He never received any notification by telephone informing him of having been charged with any offence or of any dates in Court;

(j) He was contacted by a former colleague via Facebook Messenger call on the 3 October 2024 and advised of what had occurred. On the following date he contacted the police station in Ploetsi and informed the authorities that he had moved to Ireland in 2022. He further provided them with his name, Romanian ID number and current details in Ireland. He also informed them that he had not been on notice of the proceedings or that he was being sought and was not seeking to avoid them;

(k) Having thereafter discovered that the authorities were seeking him, he instructed a private lawyer, Mr Tudar Mihai and he has lodged an appeal, dated the 8 October 2024, in the Ploetsi Court of Appeal

25. In a Supplementary Affidavit filed on the 7 March 2025, the Respondent confirmed that the appeal had been ruled inadmissible by the Ploetsi Court of Appeal on the 17 February 2025. He again confirmed that he had never mandated any lawyer to act for him in the proceedings underlying this EAW.

26. In a further Supplemental Affidavit filed on the 2 April 2025, the Respondent repeats his assertions as to his attendance at the police station in October and November 2019 as set out above. He categorically denies that he was ever provided with any information relating to the charge, that proceedings were in being, that he was obliged to notify the authorities of a change of address within 3 days or that he was provided with and signed a notice in relation to his rights and obligations. He again goes on to deny all knowledge of the charges and proceedings.

27. In a further Affidavit of the 4 June 2025, the Respondent refers back to paragraph 28 of his grounding affidavit where he stated that he had made contact with the police station in Ploetsi about this matter in October 2024 after becoming aware of the conviction and how he made numerous unsuccessful attempts to phone the police to deal with this matter. He produced his phone records which he says shows some 18 minutes and 55 seconds of phone calls to that police station in October 2024.

28. The Respondent says that he sought the assistance of the Applicant to retrieve more detail in relation to this phone records and says that this is done in order to refute the argument made by the Romanian authorities that he ignored multiple calls from them and was actively seeking to avoid them.

29. He categorically denies the contents of the reply to the third s2. 0 request. The Respondent however says at paragraph 8 of that Affidavit that he ‘cannot say with absolute certainty whether I signed the document dated 2nd June 2021 as I do not remember and cannot say for sure. I say that the signatures on top of the page that are purported to be my signature are different from one another. I say that the two signatures on the bottom of each page are also different from the first signature at the top of the page. I categorically deny the signatures at the bottom of the page are your deponent’s. If I did sign the document at the top of the page, which I cannot be certain of, I categorically deny that I was made aware of the contents of the said document.

The document was never read over to me. The document was not explained to me. I was not provided with a copy of the document and I did not understand the seriousness of the document or the consequences of its content’

30. He thereafter:

a. Accepts he signed the document dated the 14 October 2019;

b. Does not recognise the document dated 28 May 2021 and that, similar to the document purporting to contain his signatures of the 2 June 2021, this signature does not match his signature. He never received or signed this document.

D. SUBMISSIONS OF RESPONDENT

Section 45

31. The Respondent submits that surrender ought to be refused as there has been a failure to comply with the requirements of s. 45 of the 2003 and / or that the in absentia conviction and sentence of the Respondent was carried out in a manner which did not respect his defence rights.

32. The Respondent accepts that surrender may be ordered if, but only if, the Court is satisfied having made an appropriate inquiry that the Applicant has established unequivocally that the Respondent was aware of the trial/determination/hearing, the appeal dates and the consequences of non-attendance. He submits that, on the evidence offered in this case, the evidence does not establish such knowledge on the part of the Respondent.

33. The Respondent submits that the evidence does not establish any manifest absence of diligence on his part in receiving notification of documents sent by the authorities concerning these proceedings. He further submits that, even if the Court were to find default on the part of the Respondent in not informing the authorities of his change of address, any such lack of diligence is not of itself sufficient as it is not possible to conclude on the evidence that the Respondent made an informed choice not to attend his trial knowing that he might be convicted in his absence.

34. He also submits that there is no evidence that he was aware of the appeal proceedings and that he was represented by a lawyer of his own choosing or, if represented by a lawyer appointed by the authorities, that such lawyer acted on his behalf with his mandate.

Correspondence

35. The Respondent submits that it has not been established that the offence for which surrender is sought, which is not a ‘ticked box’ offence, corresponds to a ‘minimum threshold’ offence under Irish Law and that therefore surrender is prohibited under s.

38 of the 2003 Act.

36. It is common case between the parties that the corresponding offence under Irish Law is one of Driving Without a Licence contrary to s. 38 of the Road Traffic Act, 1961 (as amended). Whereas the respondent has been sentenced to a term of imprisonment of one year in Romania, the maximum penalty for such an offence under Irish Law is a fine the amount of which varies according to the circumstances of the case.

37. The Respondent argues that a lacuna exists in the 2003 Act where the issuing state requires minimum gravity, but no such requirement is required for the recipient state.

The 2003 Act requires a purposive harmonisation between member states. And such harmonisation requires a level of equivalence which establishes at a minimum that a custodial element in the issuing state should also be available for the recipient state, and this does not arise in these proceedings.

E. SUBMISSIONS OF APPLICANT

Section 45

38. The Applicant submits that the evidence establishes that the IJA summoned the Respondent by post, phone and posting at the Courthouse. The respondent however actively attempted to avoid the police, moving home shortly after giving his details and not updating his address, though he was aware of the ongoing investigation and not providing any updated telephone number at which he could be contacted.

39. The Applicant further submits that, even if the court were not satisfied that s3.1b is fully made out on the evidence, the Court should consider the circumstances in the round and conclude that the respondent has attempted to evade service in a manner which amounts to a waiver of his right to be present at trial.

40. The applicant also submits that, in considering this matter, the court should take into account the fact that at a time before the matter was finalised at first instance, the Respondent had provided a mandate to the state appointed lawyer and was represented by them.

Correspondence

41. The Applicant submits that a literal interpretation of s. 38 of the 2003 Act does not require any equivalence of the minimum gravity threshold and reading the same in such a manner is not absurd.

42. The Applicant cites the CJEU decision of Case C-547/17 Sut v Belgium which has specifically stated that there is no requirement for equivalence of the minimum gravity threshold.

F. DECISION RE S45 AND DEFENCE RIGHTS

Findings of Fact on s.45 issue

43. This is a case where I find that the evidence of the Respondent is lacking in credibility and / or reliability.

44. The Respondent inter alia avers as follows:-

(a) He was unaware of any criminal proceedings in being in relation to this matter;

(b) He was unaware that he was ever charged with any offence;

(c) He was never aware of any pending charge in relation to this matter;

(d) He was unaware that any documents served upon him at the address he provided to the police in relation to this incident would be deemed to be legally served upon him;

(e) He was unaware of any obligation to inform the authorities of a change of address;

and

(f) He was unaware that Counsellor Constantin Eduard had been mandated by the Court to represent him in any such proceedings, and he never gave any instructions to the said Mr Eduard, either in relation to the first instance hearing or the appeal before the Ploesti Court of Appeal.

45. The Respondent accepts that he signed the document provided by the Romanian authorities dated the 14 October 2019. This is a report prepared by Police Officer Gabriela and Police Officer Georgiana, following the attendance of both the Respondent and the other person involved in road traffic accident at the Headquarters of the police in Ploesti on that date. Having set out the identity of the parties and the statement of the Respondent to the police in which he admitted not being in possession of a driving licence, it was stated:-

‘In view of the above, pursuant to Article 292 of the Criminal Procedure Code, we find that there are indications of the commission of the offense of driving a motor vehicle on public roads – for which the law provides for the compulsory possession of a driving license – without possessing a driving license, an offence provided for and punishable by Article 235(1) of the Criminal Code From the moment of identification and until finalisation of the hearing, the named BORDEA GHEORGE, was co-operative and expressed regret for the offense committed, cooperating with the police authorities’

46. It is clear therefore that he was aware of the possibility of criminal proceedings against him from that date. He knew he had likely committed an offence, expressed his regret for the same and was aware that a criminal investigation was in being from that date.

47. The Respondent states that he ‘cannot say with absolute certainty’ whether he signed the report of DCO Iulian dated the 2 June 2021 as he ‘does not remember and cannot say for sure’ that he signed the same. He categorically denies the signatures at the bottom of the page are his. He queries the similarity of the signatures at the top of the document but does not specifically deny they are his signature. He states:

‘if I did sign the document at the top of the page, which I cannot be certain of, I categorically deny that I was made aware of the contents of the said document.

The document was never read over to me. The document was not explained to me. I was not provided with a copy of the document and I did not understand the seriousness of the document or the consequences of its content’

48. He denies that the signature on the third document is his, namely that of the 28 May 2021.

49. Having looked at the signatures with an untrained eye and with no expertise in this regard, there does not appear to be any obvious dissimilarity with the various signatures which are identified as those of the Respondent. No expert evidence has in any event been adduced to support any of these assertions by the Respondent.

50. Applying the principles of mutual confidence and trust, I ought accept the bona fides and reliability of the evidence provided by the issuing judicial authority unless some evidential basis has been put forward to reject the same or at the very least to call into question the reliability and authenticity of the same. The IJA had provided copies of documents from the records of the Courts and the Police who dealt with this matter, and I must therefore accept the contents of those documents unless the Respondent has put before this Court reliable evidence which calls into question the same. The evidence of the Respondent falls well short of raising any doubt as to the authenticity of the documents provided.

51. Applying the principles of mutual trust and confidence I therefore accept as truthful and accurate the contents of those documents. I find no basis whatsoever to in effect conclude that the Respondents signature was forged or otherwise improperly added to those documents.

52. Having reached such a conclusion, the following are the established facts of relevance to the s. 45 issue in this case:-

a. The Respondent was involved in a Road Traffic Accident in Romania on the 14 October 2019;

b. Both he and the driver of the vehicle with which he collided attended on that same date at Ploesti Police Headquarters, where a report was prepared by two police officers and signed by the Respondent and the other driver involved in the said accident, Constantinescu Bogdan;

c. In the course of that report, it was recorded that the Respondent admitted he did not possess a driving licence, this would indicate an offense contrary to Romanian law had been committed and Mr Bodea regretted having committed an offence. The Respondent acknowledges signing this report;

d. On the 2 June 2021 Mr Bordea was informed by DCO Iulian that criminal proceedings had been issued against him for an offence of Driving without a licence contrary to Article 335(1) of the Romanian Criminal Code. He was also informed by DCO Iulian of his various procedural rights and of his obligations, including his obligations to attend when summoned and to notify the authorities in writing of any change of address within 3 days of such a change. He was also notified that, if he failed to so notify the authorities, then the documents etc would be deemed properly served at the address on file. The Respondent does not deny his signature is on this document but says that he cannot be sure that two of the purported signatures are his and then denies that two of the purported signatures are his;

e. Whilst he did not attend at the hearing of the case at first instance before the Ploesti Court of Law, he was represented by a lawyer appointed by the State, namely Mr Constantin Eduardo and he had provided instructions to that lawyer for such purpose. There is no evidential basis to call into question what has been stated in this regard by the IJA, and I note, for example, that no attempt has been made to contact the said Mr Eduardo to challenge this assertion;

f. The lawyer instructed by the Respondent lodged an appeal against the first instance decision. Bearing in mind my comments in relation to the overall reliability and credibility of the Respondent, I do not accept that this appeal was lodged by Mr Eduardo without instructions or mandate from the Respondent;

g. The documents served upon the Respondent in relation to this appeal were served upon him at his last known address, which he had provided to the authorities on being interviewed and charged in relation to these matters;

h. The appeal hearing proceeded in his absence and the decision of the lower court was affirmed.

Section 45 and Defence Rights

53. This is not a case where there is direct evidence before the Court that the Respondent was aware of the consequences should he fail to attend at the hearing at the appeal court in Ploesti, which is the ‘trial resulting in the decision’ for the purposes of this Application. In other words, there is no direct evidence to show that the Respondent was informed or was aware that, should he fail to attend at such a hearing, his trial might proceed, and he might be convicted in his absence.

54. There is insufficient evidence to satisfy this Court that the requirements of either paragraph 3(1)(a) or 3(2) of the Schedule D were satisfied in relation to this case.

55. The evidence does not establish that the Respondent was actually made aware of the scheduled date and place of trial and was informed that a decision may be handed down if he did not appear for the trial. This applies to both the first instance hearing at Ploesti Court of Law and the appeal hearing at the Court of Appeal in Ploesti.

56. The evidence does however establish that he gave a mandate to a legal counsellor, appointed by the State, namely Mr. Constantin Eduard to defend him at the trial and was represented by that lawyer at the dates of trial on the 1 February and the 15 March 2023. There is however no evidence that he was represented by a mandated lawyer at the appeal hearing, which for the purposes of this EAW is ‘the trial resulting in the

decision’. Reliance cannot therefore be placed in Paragraph 3(2) as marked by the IJA.

57. The Supreme Court in Zarnescu. having reviewed the jurisprudence of the ECJ, distilled a number of principles labelled (a) to (r) below and those most germane to the issues to be decided are those set out in bold:-

‘(a) The return of a person tried in absentia is permitted;

(b) Article 4(6) of the 2002 Framework Decision permits the refusal to return where the requested state has a legitimate reason to refuse the EAW;

(c) A person tried in absentia will not be returned if that person's rights of defence were breached;

(d) Section 45 of the Act expressly identifies circumstances in which a person tried in absentia may be returned, primarily where there is evidence of service or where the person was legally represented or where it is shown that a right of retrial in the requesting state is available as of right;

(e) The examples outlined in section 45 as forming the basis of the analysis are not exhaustive, and the requested authority may look to the circumstances giving rise to the non-attendance of the accused person at the hearing;

(f) The requested state has a margin of discretion in how it approaches the facts, and whether to refuse return;

(g) In so doing the requested authority must be satisfied that it has been established unequivocally that the accused person was aware of the date and place of trial and of the consequences of not attending;

(h) Actual proof of service is not always required, and an assessment may be made from extrinsic evidence that the requested person was aware but nonetheless chose not to attend;

(i) Proof of service on a family member is not sufficient extrinsic evidence of that knowledge;

(j) The assessment is made on the individual facts but there must be actual knowledge by the requested person;

(k) Whether actual knowledge existed is a matter of fact and can be shown from extrinsic evidence;

(l) The purpose of the exercise is to ascertain whether the requested person who did not attend at trial has waived his or her right of defence;

(m) A waiver may be express or implicit from the circumstances, but an implication that a requested person has waived his or her rights to be present at trial is not to be lightly made and will not be made if it has not been unequivocally established that the person was aware of the date and place of trial; 9

(n) The degree of diligence exercised by a requested person in receiving notification of the date and place of trial may be a factor in the assessment of his or her knowledge of the date of trial;

(o) In a suitable case a manifest absence of diligence may lead a requested authority to the view that the accused person made an informed decision not to be present at trial, or where it can be shown that there was an informed choice made by the person to avoid service;

(p) The mere absence of enquiry as to the date or place of hearing in itself may not be sufficient, as it must be unequivocally shown that the requested person made an informed decision and, so informed, either expressly or by conduct waived a right to be present;

(q) It may in a suitable case be appropriate to weigh the degree of responsibility of the requesting state to notify an accused person of the date of trial against the accused's responsibility for the receipt of his or her mail;

(r) The enquiry has as its aim the assessment of whether rights of defence have been breached. It is not therefore a wide ranging or free-standing enquiry into the behaviour or lack of diligence of the requested person, and the purpose is to ascertain if rights of defence were adequately protected.

58. At paragraph 63 of her Judgement Baker J said:

“In the light of the decision of the Court of Justice in Dworzecki and the language of the Frameworks Decisions, the requested court may examine the behaviour of a requested person with a view to ascertaining whether it has been unequivocally established that he or she was aware of a trial date and the consequence of non-attendance, with a view to ascertaining if an informed choice was made not to attend. This in practical terms means ascertaining whether the person has knowingly waived his or her rights to be present at trial.”

59. The Court of Appeal in Szamota, having considered Zarnescu in light of subsequent judgments of the CJEU, confirmed that a relatively broad approach should be taken to waiver, subject to the rights of the defence. At paragraphs 28 and 29 of the Judgment of the Court, Collins J. stated:-

“It is also relevant in this context that in LU & PH itself the CJEU was clear that the executing judicial authority may take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of the defence and thus surrender that person to the issuing Member State, including ( inter alia) ‘ the conduct of the person concerned, in particular the fact that he or she sought to avoid service of the information addressed to him or her or to avoid any contact with his or her lawyers’ (my emphasis). That language, which picks up on statements made in TR, suggests that, for the purposes of Article 4a of the Framework Decision, the right to be present at one's trial may, in certain circumstances, be effectively waived even where the person concerned was not aware of the date and place of his or her trial (because they had taken steps which prevented notice of their trial being served upon them). It may therefore be the case that the concept of waiver in this context must be understood more broadly than the Supreme Court's decision in Minister for Justice and Equality v Zarnescu [2020] IESC

59 would appear to suggest. As Baker J made clear (at para 65), return may still be ordered even where the case does not fit within any of the exceptions to non-surrender set out in section 45 ‘ but only if the court is satisfied having made an appropriate inquiry that the rights of defence of the requested person have been met.’ However, the court went on to read the ECtHR jurisprudence as requiring, as a condition of an effective waiver, that it be established unequivocally that the accused person ‘ was aware of the date and place of trial and of the consequences of not attending’ (see para 90(g) as well as 90(m)).

With respect, that may put the matter too far. The Strasbourg jurisprudence certainly appears to identify knowledge of the criminal proceedings as a prerequisite to an effective waiver but it does not appear to make knowledge of the date and place of trial a 11 necessary condition for waiver in all circumstances:

see the authorities referred to in IR, §53, as well as ECtHR 13 September 2018, MTB v Turkey (Application no. 47081/06), §47 and following and the authorities referred to there. Zarnescu was, of course, decided before the CJEU's decisions in TR, IR and LU & PH, all of which appear to espouse a relatively broad approach to the issue of waiver, subject always to respect for the rights of defence.”

60. In Minister for Justice v Szlachcikowski [2024] IECA 2024, the Court of Appeal considered Zarnescu, and Szamota and the later decision of the UK Supreme Court in Bertino v Public Prosecutor’s Office Italy [2024] UKSC 9, in the context of a case where on the facts it had been established that there had been a ‘manifest lack of diligence’ by the Respondent but there was no evidence from which the Court was able to conclude, whether directly or by inference, that he was aware of the consequences of non-attendance, namely the possibility that the trial might proceed in his absence.

61. That Court concluded that for a waiver to be unequivocal and effective, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour.

The Court begins its analysis by observing that while an accused has a right to attend their trial – “it is a right not an obligation” (par. 50).

62. The following passage was quoted with approval from Bertino:

“Cases are fact specific. It leaves open the possibility of a finding of unequivocal waiver if the facts are strong enough without, for example, the accused having been explicitly being told that the trial could proceed in absence.”

63. Having agreed that the jurisprudence of the European Court of Human Rights had been correctly interpreted by the UK Supreme Court, the Court of Appeal observed that: “… for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour.

That will usually require the defendant to be warned in one way or another. I readily accept that it will not be necessary in every case for evidence to be adduced that the requested person was expressly advised of the potential consequences of not turning up for his trial. Awareness of consequences could be established in other ways.” (Par 72).

64. Having agreed with the conclusion of the High Court (Stack J.) that on the facts of that case that there was no evidence of the respondent having reasonably foreseen the consequences of non-attendance, Edwards J added

“I reiterate that I see no reason why in another case a court should not be able, from cumulative information provided and evidence as to attendant circumstances, to infer the necessary awareness.” (Par 74)

65. Having regard therefore to the decision of the Supreme Court in Minister for Justice v Zarnescu [2020] IESC 59 and the decisions of the Court of Appeal in The Minister for Justice v Szamota [2023] IECA 143 and Minister for Justice v Szlachcikowski [2024] IECA 2024 , it is clear while it must be shown that a respondent was aware of the consequences of non-attendance, there is no absolute requirement for evidence that the Respondent was so informed. It is sufficient that his requirement can be established by other means.

66. In the present case there is no direct evidence that the Respondent actually received notice of the hearing of the appeal before the Ploiesti Court of Appeal and / or that he was informed that such appeal might proceed in his absence. Insofar as the latter is concerned, there is no evidence that at any stage of the process in Romania, whether at first instance or on appeal, that the Respondent was made aware of the consequences of non-attendance, specifically that the case could proceed to conclusion in his absence.

67. That is of course not the end of the matter however as the Court must then consider whether the necessary awareness of the consequences of non-attendance can be inferred from the cumulative information and attendant circumstances of the case.

68. Having rejected the evidence of the Respondent for reasons already set out above, I must therefore, applying the principles of mutual trust and confidence, consider this matter on the basis of the evidence provided by the IJA and the principles of law set out by the Supreme Court in Zaranescu and the Court of Appeal in Szamota and Szlachcikowski.

69. This is a case where the Respondent was aware, from the 14 October 2019 – the date of the accident which led to his being charged with the offence of Driving without a Licence, that a criminal investigation was in being and that he was likely to be charged.

On that date he acknowledged that he committed such an offence and apologised for same. It is also a case where the evidence establishes that on two separate dates, being the 28 May 2021 and the 2 June 2021, he was informed that he was being charged with this offence, and he signed a document on each occasion acknowledging same. On the latter date he was informed of his procedural rights and obligations and of the possibility of entering a plea agreement.

70. He thereafter gave instructions to a court appointed lawyer, Mr Constantin Eduardo, to act for him during the first instance hearing. He did not attend that hearing and, whilst there is no direct evidence that he received notice of his conviction and sentence, Mr Eduardo lodged an appeal on his behalf, and I infer that this was done on his instructions and therefore he was aware of that conviction.

71. He then deliberately evaded all engagement with the appeal process, despite the numerous attempts of the authorities to give him notice of the same. These various attempts included serving him with documents at the address he had given and posting notice of the date of trial at the local court. The Appeal Court ultimately concluded that he had been given proper notice in accordance with the requirements of Romanian law and proceeded to hear the appeal and affirm the conviction and sentence.

72. There was a manifest lack of diligence by the Respondent in relation to the proceedings before the Court of Appeal in Ploesti. Aware of the charge against him and of his procedural rights and obligations, he gave instructions to Mr Eduardo who acted for him during the said first instance trial. Aware of his conviction and sentence at first instance, I can infer he instructed Mr Eduardo to lodge an appeal and thereafter simply made no effort whatsoever to engage in the appeal process.

73. Adopting the broad approach to waiver, as explained by Collins J in Szamota, I am satisfied that this is a case where, aware of extant criminal proceedings and his conviction at first instance, there was a manifest lack of diligence on the part of Mr Bordea in pursuing his appeal which led to the ‘trial resulting in the decision’ at the Ploesti Court of Appeal. Based on the cumulative information and the attendant circumstances this is a case where, whilst there is no direct evidence that the Respondent was aware of the place and date of the appeal hearing, applying the principles relating to this issue as elaborated upon by the Court of Appeal in Szlachcikowski, I can infer he was aware of the consequences of his non-attendance, namely that should be not attend the appeal might well be determined in his absence. I reach this latter conclusion having taken into account the following:-

(i) His awareness of and participation in the first instance trial;

(ii) His awareness that such first instance trial proceeded in his absence;

(iii) His acknowledgment of documentation in relation to the first instance proceedings;

(iv) The fact that the lawyer he had previously engaged lodged an appeal on his behalf and I infer this was done on his instructions;

(v) His failure to maintain contact with his lawyer and / or in any way engage in the appeal process in circumstances where he knew he had already been convicted and sentenced at first instance in his absence.

74. I have of course considered the various attempts the Respondent says he had made to contact the authorities in Romania since he says he became aware of these matters. In light of my findings of fact and decision above, these do not affect my conclusion that, although the Court of Appeal hearing proceeded in his absence and although the two boxes ticked for the purposes of Section 45 D are not made out, his defence rights were protected in the course of the process that led to the hearing and decision at both the first instance Court and the Court of Appeal.

75. This ground of objection is therefore dismissed.

Correspondence

76. The Respondent argues that there is an impermissible lacuna in Irish Law as, whilst correspondence must be shown between the acts and omissions that constitute the offence(s) in the requesting state and an offence in Irish law, there is no requirement that there be correspondence as to the penalties for such offending in the requesting state and this state.

77. Correspondence is defined in s. 5 of the 2003 Act and the requirement is that the conduct complained of in the issuing state corresponds with an offence under Irish law.

A minimum gravity threshold applies to the issuing state and this is provided for in s.38 which states:-

‘(1) A person shall not be surrendered to an issuing state under this Act in respect of an offence unless –

(a) it is the case that :

(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or

(ii) a term or imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term or imprisonment,

(b) in the case of a European arrest warrant, the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years, or

(c) in the case of a Trade and Cooperation Agreement arrest warrant, the offence is an offence to which paragraph 5 of the Trade and Cooperation Agreement applies and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years.

(1A) Subject to subsection (2), the surrender of a person to an issuing state under this Act in respect of an offence may be refused where the offence does not correspond to an offence under the law of the State’

78. In the case of Sut v Belgium Case C-514 /o 17, the CJEU rejected the contention that it would contravene the Framework Decision for an executing authority to order surrender where the offence in the surrendering state is a fine only offence.

79. A literal reading of the words of s. 38 of the 2003 Act does require any equivalence as to the minimum gravity threshold. This reading of the section does not lead to any absurdity, obscurity or ambiguity.

80. The inquiry required under the 2003 Act is directed to the question of whether correspondence is established between the conduct alleged or proven in the requesting state and an offence under Irish law. S38 further provides that a minimum gravity threshold must be met in relation to the offence in question in the requesting state. There is no requirement that correspondence be established between the punishment for the conduct in question in the issuing state and an offence under Irish law.

81. This ground of objection is therefore dismissed.

82. I therefore propose to make an order for the surrender of the Respondent to Romania pursuant to s. 16 of the 2003 Act.