High Court refuses surrender under EAW due to trial in absentia violating defence rights under s. 24(2).

THE HIGH COURT

[2025] IEHC 609

Record No. 2025/015 EXT

BETWEEN

MINISTER FOR JUSTICE

APPLICANT

AND

IOAN SABIN NISTOR

RESPONDENT

JUDGEMENT of Mr Justice Patrick McGrath delivered 5 November 2025

1. BACKGROUND

1.1 In this application the Minister seeks the surrender of the Respondent on foot of a European Arrest Warrant [‘EAW’] from Romania issued by Judge Onigas Adina – Miahela of the Nasaud Court, Romania on the 15 October 2023.

1.2 The background to this application is somewhat unusual. The Romanian police entered an SIS alert for the Respondent on the 28 October 2020 and he was arrested on foot of this alert on the 11 January 2025. The Romanian authorities transmitted the original EAW to the Central Authority on Friday the 17 January 2025, but the Respondent was not produced before the Court until the following Wednesday, the

22 January 2025 for the purposes of production of the EAW as required under Section 14(4) of the 2023 Act. This Court struck out those proceedings [2025/11 EXT] as it was not satisfied that he had been brought before the court ‘as soon as may be’ after receipt of the Warrant.

1.3 The Applicant immediately applied for the present EAW to be endorsed for execution pursuant to s. 13 of the 2003 Act and a new record number [2025/15 EXT] was allocated to the proceedings. The Respondent has been on bail since the 20 January 2025 pending the outcome of these proceedings.

1.4 The surrender of the Respondent is sought for the purpose of executing a three-year sentence of imprisonment, imposed in 2010 for a theft type offence. It is described in the EAW as an offence of ‘aggravated theft’ and / or ‘qualified theft’ contrary to Article 208, paragraph 1 in relation to Article 209, paragraph 1(a), (g) and (i) of the Criminal Code of Romania.

1.5 No issue is raised in relation to identity, and I am in any event satisfied that the Respondent is the person sought on foot of this EAW.

1.6 Judge Onigas Adina has signed the EAW and is listed as a judicial authority. I am satisfied that the warrant was issued by a ‘judicial authority’ within the meaning of s.2 of the 2003 Act.

1.7 The warrant is, so far as is practicable, set out in the form of the Annex to the Framework Decision and I am satisfied the information provided therein satisfies the requirements of s11 of the Act.

1.8 I am satisfied none of the issues referred to in ss 22, 23 or 24 of the Act arise for consideration and surrender is not precluded for any of the reasons set out therein.

1.9 The warrant seeks surrender to serve the balance of a three-year sentence imposed in Romania and the minimum gravity requirements under the 2003 Act are clearly met.

1.10 None of the offences are ‘ticked box’ offences, that is offences for which is not required to show correspondence as they are of a category listed in Article 2.2 of the Framework Decision. It is therefore necessary to demonstrate correspondence in accordance with s38 of the 2003 Act.

1.11 Section 5 of 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’.

1.12 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

1.13 No objection to surrender is raised by the Respondent on the grounds that there is an absence of correspondence. I am in any event satisfied that the acts or omissions that constitute the offence in respect of which surrender is sought correspond with offences under Irish Law as follows:

- Theft contrary to Section 4 of the Criminal Justice (Theft and Fraud) Offences, Act 2001; and / or

- Burglary contrary to Section 14 of the said Act.

2. GROUND OF OBJECTION

2.1 At the hearing of this matter, the Respondent objected to surrender on one ground, namely:

- His surrender is prohibited pursuant to s. 45 of the 2003 Act as his defence rights were not upheld in the course of his trial in absentia

2.2 The following relevant facts are not in dispute between the parties:-

a. On the 11 September 2013, the Nassaud Court in Romania sentenced the Respondent in absentia to three years imprisonment for the offence set out in the Warrant. The execution of this warrant, however, was suspended under supervision for a period of six years; b. On the 24 January 2011 he had, during the course of a police investigation, provided a handwritten statement in which he acknowledged commission of this crime, indicated the manner of its commission and named the persons who participated in the same; c. The Respondent clearly became aware that this sentence has been imposed as he duly presented himself to his probation counsellor in Romania on the 22 November 2013, which was the date when probation supervision was due to commence. The probation counsellor then informed him of the details of the criminal sentence, his supervision obligations and the legal consequences of non-compliance; d. Mr Nistor complied with these obligations for almost five years and in that time attended twenty-six meetings with his counsellor between the 29 November 2013 and the 7 September 2018. For three of those years, he was living in Ireland and maintained contact with the probation counsellor in that time; e. He ceased contact with probation after the 7 September 2018 and, following unsuccessful efforts to contact him via Facebook, WhatsApp and through members of his family and the police, the probation service sought to have the suspension of his sentence revoked. A magistrate at first instance decided not to revoke as he held there was no bad faith on the part of the Respondent. The prosecutor appealed and, on the 7 January 2020, the Appeal Court found he had demonstrated bad faith, revoked the suspension and ordered execution of the sentence.

2.3 Part D of the Warrant confirms that the Respondent ‘was not present at the trial that resulted the judgment was pronounced’ but the IJA certifies compliance with conditions 3.1a and 3.4.

2.4 These conditions, as translated, read as follows:-

‘3.1a – The person was personally summoned at the time of trial, informed of the date and place set for the trial in following which the judgment was pronounced and was informed that judgment may be pronounced if it (he) is not present at the trial’

‘3.4 – the decision was not personally handed to him, however:

- The decision will be handed to him personally without delay after surrender and;

- When the judgment is handed down, the person will be expressly informed of the right to re-trial the case or of an appeal, in which he has the right to be present and which allows the factual situation of the case, including the new evidence, to be reviewed and which may lead to the cancellation of the initial judgment; and

- The person will be informed of the time period in which they must request a re-trial of the case or the promotion of the appeal, which is 10 days’

2.5 It was confirmed in additional evidence provided by the IJA on the 5 March 2025 that Part D of the EAW was intended to cover both stages of the proceedings, namely the original trial resulting in the passing of sentence in 2013 and the revocation hearing in 2020.

2.6 The Respondent says that he was not personally notified or otherwise aware of the date of the trial he was unaware of any appeal proceedings, he was not represented at any stage by a mandated lawyer (having been represented by a state appointed lawyer with whom he had no contact) and he does not have a sufficient right to a retrial or appeal despite the wording of paragraph D3.4 as certified in the EAW.

2.7 Although the IJA seems to have certified a right of appeal and / or re-trial sufficient to meet the terms of paragraph D3.4, additional information was sought from the requesting state in light of the judgment of the UK Supreme Court in Merticariu v Judecatoria Arad, Romania [2024] UKSC 10, which questions whether the right of appeal or retrial actually provided in Romania pursuant to Article 466 of the Romanian Criminal Code satisfies all of the requirements of paragraph D3.4. It should also be noted that similar concerns were raised in this jurisdiction by Donnelly J in Minister for Justice v Iacobuta [2019] IEHC 150.

2.8 In a s. 20 request sent on the 5 March 2025, the Minister sought clarification as to whether the right or appeal or retrial available to Mr Nistor would be that provided for in the said Article 466 and, if so, whether if surrendered he has an absolute and unconditional right of appeal. As the issuing judicial authority had indicated in reply that it cannot give a definitive response in this regard as the issue is for the competent court to decide, the Minister correctly concedes that he cannot therefore seek to rely upon this assurance of retrial / re hearing as satisfying the strict requirements of Paragraph D3.4.

2.9 That of course is not the end of the matter as, even where there has been a trial in absentia and the case does not fit within any of the categories provided for in Paragraph D of s.45, surrender may still be ordered if there is sufficient information to allow this Court to conclude that the Respondent’s defence rights were properly and adequately vindicated in the course of the proceedings leading to the ‘trial resulting in the decision’ in Romania.

2.10 The Minister submits that, taking into account all the circumstances of the case, including the Respondent’s own conduct, the court can be satisfied that his defence rights were vindicated. In this regard the applicant refers to the following in particular:-

a. He made full admissions in the course of the investigation of this matter by the police in Romania;

b. The authorities did what they could notify him of the progress of the case against him and of the date and place of trial in the following years, but he had gone abroad and had not left contact details with family members or the authorities;

c. The authorities made unsuccessful attempts to contact him through Europol;

d. The authorities sought to ensure that he had a fair trial by appointing a lawyer to represent his interests;

e. It would have been open to the Respondent to request a retrial or appeal after he returned to Romania as time for such a request had not passed; and f. Instead, he engaged with probation without contesting the act, the punishment or the supervision matters and continued so to do for a further five years

2.11 The Respondent submits that his defence rights were not guaranteed at the in absentia hearing resulting in the decision to impose this sentence in 2013. The issuing judicial authority did not rely upon Part D3.3.3 of the Warrant, and the Minister cannot therefore speculatively assert that the Respondent waived a right to appeal in the sense envisaged by the Framework Decision.

2.12 The Respondent further submits that the respondent’s extensive compliance with probation conditions in the years between 2013 and 2018 simply cannot and should not be counted against him to remedy the mischief of his in absentia conviction contrary to Article 4.a of the Framework Decision.

3. DECISION

3.1 In order to consider the objection to surrender on the basis of alleged non-compliance with s. 45 of the 2003 Act, it is firstly necessary to consider what was ‘the trial resulting in the decision’ for these purposes. There is no doubt that the hearing which lead to the imposition of sentence in 2013 forms part of the ‘trial resulting in the decision’.

3.2 The revocation hearing in 2020 was not part of the ‘trial resulting in the decision’.

Although the court which then considered whether or not to revoke the suspension of the sentence imposed for the relevant offence in 2013 enjoyed discretion as to whether to revoke the suspension and whether to do so wholly or in part, this discretion related solely to the execution of the sentence previously imposed in 2013. The IJA has confirmed that the revoking court did not seek to re-analyse the merits of the original sentence but its role was ‘strictly to verify whether it is necessary to maintain the suspension or revoke this benefit’. As the court in 2020 did not, and indeed could not, alter the ‘nature and /or quantum’ of the sentence originally imposed in 2013, applying the well settled principles established in cases such as Ardic and LU, this hearing is not part of the ‘trial resulting in the decision’ for the purposes of s. 45 of the 2003 Act.

3.3 The Court must therefore consider whether there was compliance with s. 45 of the 2003

Act in relation to the 2013 hearing which resulted in the imposition of sentence for the offence in the Warrant or, if there was not compliance with the same, whether or not it is established that the defence rights of Mr Nistor were upheld in the process leading to that sentence being imposed.

3.4 Although various efforts were made to contact the Respondent and notify him of the date and place of the 2013 trial, the issuing state have not shown that he was summonsed in person or actually otherwise received information about the date and place of that trial.

As accepted by the Minister, applying the principles established by the CJEU in Dworzecki [C-108/16 PPU], in the absence of such evidence, the conditions set out in D3.1a and 3.1b are not met and reliance cannot be placed on the same.

3.5 The IJA have not indicated that the respondent was never formally served with the

decision arising from his in absentia conviction and then expressly informed of any available ‘right to a retrial or appeal, in which he had the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may have lead to the original decision being reversed’ It is indicated that the decision was sent to his last known address and this is not sufficient to demonstrate compliance with the provisions of s. 45 of the 2003 Act.

3.6 Whilst Part D of the EAW indicates that the respondent was legally represented at the trial resulting in the decision, he was not represented by a mandated lawyer who he actually instructed. As was made clear in the Judgment of the High Court in Minister for Justice v. Sipka [2021] IEHC 587, representation by a state appointed lawyer (as here) is not sufficient for compliance with Part D of s. 45 of the 2003 Act.

3.7 The court was referred to the Judgment of the UK Supreme Court in Merticariu v

Judecatoria Arad, Romania [2024] UKSC 10, where concerns were raised as to whether the right of appeal or retrial actually provided in Romania pursuant to Article 466 of the Romanian Criminal Code satisfies all of the requirements of paragraph D3.4. Similar concerns were raised in this jurisdiction by Donnelly J in Minister for Justice v Iacobuta [2019] IEHC 150. As noted earlier in this judgment, these concerns led to this court issuing a request for additional information. It now is agreed by both parties that, in the circumstances of this case, the invocation of the ticked box at Part D.3.4 cannot be relied upon given the IJA’s response by way of additional information. In other words, it cannot be said that, if surrendered the Respondent will have the unconditional right to a retrial or appeal which complies with the requirements of that sub section.

3.8 As is now well established, the fact that an in absentia hearing was conducted in a manner which does not comply with one of the boxes at Paragraph D to s. 45 is not the end of the matter. In such circumstances a Court must nonetheless order surrender if it is demonstrated that the defence rights of a Respondent were upheld in the process leading to the ‘trial resulting in the decision’ [Minister for Justice v Zaranescu [2020] IESC 59, Baker J].

3.9 A court should consider whether, on all the available evidence, it can be unequivocally established that the Respondent was aware of the trial and the consequences of nonattendance. The purpose of the inquiry is to ascertain whether it is established that the requested person who did not attend at his or her trial has waived his or her rights of defence.

3.10 As indicated by Baker J in Zaranescu , the assessment must be made on the individual facts but the Court must be satisfied that there was actual knowledge of the hearing on the part of the requested person.

3.11 The case law establishes that, while it must be shown that a respondent was aware of the consequences of non-attendance at ‘the trial resulting in the decision’, there is no absolute requirement for evidence that the Respondent was so ‘informed’ and this requirement can be established by other means [ Baker J. in Zarnescu 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.

3.12 The behaviour of the requested person may be considered but 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.

3.13 Looking at all the circumstances of this case it cannot, in my opinion, be unequivocally shown that the Respondent made an informed decision to absent himself from the proceedings and expressly or by his conduct waived his right to be present at the ‘trial resulting in the decision’. I agree with the Respondent that any subsequent compliance by him with the conditions upon which he was put on probation cannot cure the mischief of a trial in absentia which was conducted without due regard to his defence rights.

3.14 There is insufficient evidence for this Court to conclude, whether from direct evidence or by inference from the surrounding circumstances, that prior to the ‘trial resulting in the

decision’ in this case, the Respondent had knowingly decided to take no part in the proceedings and was aware of the possible consequences of such inaction on his part.

3.15 In this regard I take into account the following:-

a. Whilst there is evidence that he made admissions to the police, there is no evidence that he was at that time legally represented. Nor is there any evidence that these admissions were adopted or confirmed by him during any official court process;

b. This is not a case where, as in some other cases dealt with by this Court, the Respondent at the time he was in contact with the police was informed of any legal obligations in relation to this matter. He was not, for example, warned that documents might be served on him in relation to this case at his address, of an obligation to inform the authorities of any change of address and / or of the possible consequences of non-compliance with such requirements. In many such cases, a suspect will be given such warnings and will be informed that documents will be deemed served at his last known address and that, once this is done, a trial may proceed in his absence.

Nothing of that kind occurred here;

c. There is no evidence that he was personally made aware of the charges and / or proceedings prior to his conviction;

d. There is no evidence that he was made aware of any right to appeal conviction within the time provided for the same; and e. He was represented by a lawyer appointed by the State and there is no evidence that his lawyer acted on the instructions of the Respondent.

3.16 In these circumstances this is not a case where the Court can be satisfied that the defence rights of the Respondent were upheld in the process which led to the ‘trial resulting in the

decision’ leading to the conviction and sentence in Romania which are the subject of this Warrant.

3.17 In the circumstances this Court cannot therefore order the surrender of the Respondent and the application by the Minister for an order under s. 16 of the 2003 Act is refused.