High Court refuses surrender under EAW due to unproven waiver of appeal rights and lack of mutual trust.

THE HIGH COURT

[2026] IEHC 471

Record No. 2025/325 EXT

BETWEEN

MINISTER FOR JUSTICE

APPLICANT

AND

OLEG CULEAC

RESPONDENT

JUDGEMENT of Mr Justice Patrick McGrath delivered on the 6th July 2026

BACKGROUND

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 Tescu Iuliana, a Judge of Iasi City Court, dated the 11th of October 2023.

2. The Respondent is sought to serve a total sentence of imprisonment of six years, imposed by the Iasi City Court of Appeal on the 4th of October 2023, in respect of a number of offences.

3. The Respondent was first arrested on foot of an SIS alert issued in respect of these matters and brought before the High Court on the 26th of November 2025. The EAW was subsequently produced to the Court on the 1st of December 2025. The

Respondent, having been initially remanded in custody following his arrest and production before the Court, was admitted to bail in this case on the 1st of December 2025.

4. A number of requests for additional information were sent to the issuing judicial authority [‘the IJA’] prior to the hearing of the application as follows:-

(i) The first S.20 request was sent on the 23rd of January 2026 and a reply thereto was received on the 27th of January 2026;

(ii) A second request issued on the 9th of March 2026 with a reply thereto received on the 10th of March 2026;

(iii) The third request was sent on the 23rd of March 2026 and an answer thereto received from the IJA on the following day; and

(iv) The final request issued on the 30th of March 2026 with a reply received thereto on the 2nd of April 2026.

5. There is no dispute in relation to identity, and I am in any event satisfied that the person sought in the EAW is the Respondent.

6. Judge Tescu Iuliana 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 European Arrest Warrant Act 2003 (as amended) [‘the 2003 Act’].

7. 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.

8. Surrender is sought so that the Respondent might serve a sentence of imprisonment of

6 years and therefore no issue arises as to minimum gravity.

9. This is not a case where the offences in respect of which surrender is sought are ‘ticked box offences’, that is offences of a kind set out at Article 2 of the Framework

Decision in respect of which it is not necessary to show correspondence with offences under Irish law. As such correspondence must be established in this case.

10. 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’.

11. 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

12. The offences of which the Respondent was convicted and for which surrender is now sought are described in detail at part (e) of the EAW.

13. Having considered the submissions of the parties and noting that there is no real dispute in this case on the question of correspondence, I am satisfied that the acts or omissions which constituted the three offences for which surrender is sought could, if prosecuted in Ireland, constitute the following criminal offences:-

(i) Offence of taking charge, possession, custody or the transportation or concealment of excisable products, upon which no excise duty has been paid, with intent to defraud the State contrary to Section 119(1) of the Finance Act, 2001;

(ii) Being concerned in the evasion or attempted evasion of excise duties with intent to defraud the State contrary to Section 119(2) of the Finance Act, 2001; and

(iii) Various offences contrary to Section 14(1) of the Customs Act, 2015 which criminalise various actions with a view to evading customs and / or excise duties payable on the importation of goods into the state.

GROUNDS OF OBJECTION

14. At the hearing of the application the Respondent objected to surrender on two grounds as follows:-

(i) Surrender cannot be ordered as there remains an impermissible lack of clarity in the EAW and additional information, particularly in relation to the offences for which surrender is sought and the nature and extent of the penalty imposed in respect of any such offences. The EAW therefore does not meet with the requirements of Section 11 of the 2003 Act and specifically section 11(1A)(d)

and (g) thereof;

(ii) Surrender ought to be refused as the Respondents rights of defence were not upheld or protected in the course of the prosecution appeal which led to the imposition of the sentence for which surrender is now sought and at which he was not present;

FACTUAL BACKGROUND

15. There is a somewhat complex background to this case which has been largely and helpfully summarised by the Minister in his submissions, and this includes the following: -

a. On the 14th of March 2016 the Respondent was involved in smuggling 1,700 packets of cigarettes from Moldova into Romania (Offence No 1);

b. On the 10th of February 2017, the Respondent was convicted of this offence at Iasi City Court and a sentence of two years imprisonment was imposed but such sentence was fully suspended on certain conditions (Sentence No. 1). This sentence was made final by Iasi Court of Appeal on the 25th of September 2017;

c. On the 16th of September 2018 the Respondent was in possession of 2,500 packets of cigarettes upon which excise duty had not been paid and delivered the same to another (Offence No 2);

d. On the 9th of November 2018 was in possession of a significant quantity of unstamped cigarette boxes ( namely boxes of cigarettes in respect of which excise duty had not been paid) and was involved in the smuggling of boxes of cigarettes (Offence No 3);

e. On the 30th of December 2022 the Respondent was acquitted at the Iasi City Court of offences No 2 and 3, being then the offences of ‘constitution of an organised crime group’ and ‘smuggling’;

f. On the 6th of January 2023 the Prosecution filed an appeal against the decision of Iasi City Court acquitting him of Offences No 2 and 3.

g. The Respondent was on the 15th of January 2023 served with the decision of Iasi City Court of the 30th of December 2022 and was therein informed about the right of retrial or appeal;

h. On the 23rd of April 2023, in the course of the Prosecution appeal against his acquittal at first instance, the Iasi City Court of Appeal changed the legal classification of offences No 2 and 3, as against the Respondent;

i. On the 4th of October 2023, the Iasi City Court of Appeal issued a judgement convicting the Respondent of the amended offences No 2 and 3 and imposed sentences of 4 years thereon and revoked the suspension of the two year sentence imposed in 2017 in respect of Offence No 1. This now activated two year sentence was added to the four year sentence, resulting in the Respondent now being required to serve a six year sentence in total.

16. Following subsequent correspondence with the IJA, the following was further clarified:-

a. The revocation by the Iasi City Appeal Court in 2023 of the conditional sentence imposed in 2017 in respect of Offence No 1 did not involve any new determination of the sentence imposed for such offence;

b. The total sentence of 6 years imprisonment was arrived at following an arithmetic exercise of adding the four years imprisonment imposed in respect of Offences 2 and 3 and the two-year sentence (originally suspended but later activated) in respect of Offence No 1.

17. Additional information has also been received from the IJA in respect of the inabsentia hearings before the Iasi City Court of Appeal in 2023 which resulted in the imposition by that Court of a total sentence of six years imprisonment upon the Respondent. The Respondent and his lawyers have also filed a number of affidavits and exhibited a number of documents concerning the circumstances in which this hearing proceeded in the absence of Mr Culeac.

18. The Respondent was not in attendance at the hearing at Iasi City Court of Appeal at which the sentence for which surrender is now sought was imposed in October 2023.

It is common case that this is part of the ‘trial resulting in the decision’ for the purposes of considering whether or not his defence rights were upheld.

19. Article 4 of the 2002 Framework Decision, as amended by the 2009 Framework

Decision, permits a state to refuse surrender where the trial resulting in the decision took place in absentia. This prohibition does not however apply where the trial in absentia took place in the specific circumstances provided for in that article. The law in relation to issues which may arise where the trial resulting in the decision has been conducted in absentia has been also the subject of consideration in a number of decisions of the CJEU, the ECtHR and the Irish Courts which are discussed below.

20. Where a person whose surrender is sought on foot of a conviction EAW was (as here)

not present at the ‘trial resulting in the decision’, the court has to consider firstly, whether surrender may be ordered on one of the grounds expressly provided for under Article 4a of the Framework Decision, which are set out at Table D to s45 of the European Arrest Warrant Act (as amended).

21. It is now clear, following the receipt of additional information, that the IJA are here relying upon the following

‘3.2 being aware of the scheduled trial, the person had given a mandate to a legal counsellor who was appointed either by the person concerned or by the state, to defend him or her at the trial, and indeed was defended by that counsellor at the trial’

22. In this case the Respondent had the assistance of his own nominated lawyer to appear for him at the first instance hearing in respect of Offences 2 and 3, being the proceedings in Iasi City Court which led to his acquittal on the 30th December 2022.

23. His complaint relates to what occurred thereafter, namely after his acquittal by the Iasi City Court and when the Prosecution decided to appeal his acquittal and the hearing(s) which resulted in his being subsequently convicted and sentenced in absentia for similar or substituted offences (arising from the same incidents) by the Iasi City Appeal Court on the 4th of October 2023.

24. In his first affidavit, dated the 27th of January 2026, the Respondent confirmed he received notification of his acquittal on Offences 2 and 3 in January 2023. He then stated as follows at paragraph 9:

‘Arising from this, I understand that there may have been a prosecution appeal of my acquittal and re-trial in absentia for a different offence. I did not appear at that appeal / re-trial. I did not know about it at the time. I have asked my legal representative to seek an expert view as to the background to the relevant legal position according to Romanian law.’

25. In reply to the s. 20 request of the 23rd of January 2026, the IJA stated that the defendant’s right to defence was respected as he had his own chosen lawyer at both phases of the criminal trial, that is both before the Iasi City Court and the Iasi City Court of Appeal.

26. An affidavit was sworn by Ms Dania Clejan, Solicitor for the Respondent, setting out her correspondence with the solicitors in Romania, SCA Tomaseschi & Asociatjii [‘Tomaseschi & Co.], who had acted for the Respondent in respect of Offences No 2 and 3. In their first response the Romanian Solicitors inter alia stated:-

‘We have just obtained the criminal case files from the archives. We respond as follows: With regard to the hearing of the appeal, we continued to appear and represent the client, Culeac Oleg, in his absence. Although he was not present, he did not request, by any means, the termination of the legal assistance agreement’

27. In reply to further questions as to the state of knowledge of the Respondent as to the existence of the appeal and / or whether he gave any instructions in this regard, the solicitors in a further email stated as follows:

‘1. Mr Culeac has neither returned to the office nor contacted us, and therefore we have no means of knowing whether he was aware of the existence of the proceedings. As Mr Culeac did not present himself at the office, there was almost no opportunity for anyone to inform him about the filing of the appeal.

Oleg Culeac did not give specifically a new instruction to SCA TOMASESCHI & ASOCIATII as to the manner in which he wished to contest and/or otherwise participate in the appeal [Citing what the Respondent said on Affidavit] ‘Oleg Culeac has told the following : ‘I retrospectively understand that there may have been a prosecution appeal of my acquittal and re-trial in absentia. I did not appear at that appeal / re-trial. I did not know about it at the time’ – we confirm that this could be correct. Mr Culeac did not appear at that appeal The requested person, Oleg Culeac, did not specifically instruct us to appear for him at the hearing of the appeal’

28. This prompted a further s. 20 request to the IJA in relation to this issue and, included in this request, were the above comments of the Respondents Romanian solicitors.

The following information was specifically sought:-

‘1. How was the Respondent notified of the appeal filed against the acquittal of the Respondent on 30 December 2022 by Public Prosecutors Office attached to the High Court of Cassation and Justice – Directorate for the Investigation of Organized Crime and Terrorism – Iasi Regional Division?

2. Were any attempts made to personally serve the Respondent with the appeal filed by Public Prosecutor’s Office? If so, please outline those attempts

3. How was ‘the judicial review court (Iasi City Court of Appeal)’ satisfied that the Respondent was aware of the appeal filed by the Public Prosecutor’s Office?

4. How was the ‘judicial review court (Iasi Court of Appeal)’ satisfied that the chosen lawyer was mandated by the Respondent in the appeal proceedings?’

29. In its reply the IJA said as follows:- ‘The convict Culeac Oleg was represented before the Court of Appeal via the chosen lawyer, who, participating at the settlement of the appeal, was fully informed with regard to the grounds of appeal and with regard to all aspects debated on the occasion of the appeal The chosen lawyer would not have had the possibility to participate in this quality in the lack of a firm mandate on behalf of the accused Culeac Oleg, mandate represented by the legal assistance contract, the proof of which is the lawyer’s authorisation submitted to the file of appeal, fact permitting his representation before Iasi Court of Appeal All the documents communicated and of which the chosen lawyer has taken congnizance during the judgment of the appeal are considered to the communicated to the accused’

30. This prompted a further s. 20 request seeking inter alia details as to how the lawyer in Romania was notified of the appeal and a copy of the lawyer’s authorisation referred to in the previous reply. On the 2nd of April 2026, the IJA replied as follows:-

‘On 06 February 2023, via the phone record carried out by the court clerk within the registrar’s office of Iasi City Court of Appeal, at the service of the court panel, we contacted the chosen lawyer of the accused Culeac Oleg (Lawyer Tomaseschi Dragomir) and informed him with regard to the court hearing that was set to settle the appeal ….

On 21 March 2023, he filed a request to access the electronic file on the roll of Iasi Court of Appeal, fact permitting lawyer to take cognizance of the grounds of appeal filed by the public prosecutor’s office and that are considered to be equally communicated to the accused;

The lawyer’s authorisation submitted to the file ( COPY ENCLOSED ) does prove the conclusion of the legal assistance contract entered into between the lawyer and the accused Culeac Oleg, accordingly the accused was informed, by his lawyer, about the appeal filed by the public prosecutor’s office’

31. The reply then goes on to confirm that the lawyer chosen, Mr Tomaseschi Dragomir, attended at all court hearings before the Court of Appeal.

32. A further affidavit was then filed by Mr Culeac in which he again agrees that he had engaged this firm for the first instance hearing and confirms that he did not specifically withdraw their mandate after his acquittal. He goes on to say that ‘However, I did not know or in any way expect that an appeal would take place. I didn’t instruct my Romanian lawyers or otherwise specifically mandate them to appear for me in the course of a prosecution appeal’

33. Commenting on the information received from Romania in relation to the court file and his lawyer continuing to represent and his alleged mandate, the Respondent stated at paragraph 6 of this affidavit:-

‘I note the contents of the lawyers authorisation appended to the additional information dated 20 March 2023. That authorising document does not reflect a specific mandate or instruction for my Romanian lawyers to appear at the prosecution appeal. I was not in contact with my Romanian lawyers at that time. I note the section of the authorisation requiring my signature of that of a proxy, remains blank [which is factually correct]. I note that a further section requiring a ‘legal assistance contract number’ is not completed either [also factually correct]. I expect this reflects the fact that the authorisation is grounded in my original mandate to SCA TOMASESCHI &ASOCIATJII prior to my first instance trial’

SUBMISSIONS OF PARTIES

34. The primary focus of the Respondents submissions, both in writing and at the hearing, was on his contention that surrender cannot be ordered owing to the failure to uphold the defence rights of Mr Culeac in relation to the ‘trial resulting in the decision’ , that is the hearing at the Iasi Appeal Court which led to the imposition of the sentence which it is now sought to enforce.

35. His case, set out with admirable clarity and precision by his Counsel, is that the defence rights of Mr Culeac were not upheld in the process before the Iasi Court of Appeal which led to the imposition of the sentence for which surrender is sought, and which is for these purposes ‘the trial resulting in the decision’. He says this is so as his client never mandated the lawyer Mr Tomascheci Dragomir, who acted on his behalf at that appeal hearing, to represent him during those appeal proceedings. He had mandated that lawyer to act for him at first instance, when he was acquitted of charges similar to those upon which he was convicted on appeal. He never formally ended Mr Tomaseschi’s mandate to act for him as he assumed that the matter was concluded following his acquittal. He received no notification of any appeal from either the IJA or Mr Tomaseschi and has correctly observed that neither his signature nor the signature of any proxy appears on the form seemingly filed with the Iasi Court of Appeal by Mr Tomasechi.

36. Counsel also submits that, unlike the position under consideration in cases such as Minister for Justice v Fiszer [2015] IEHC 664, this is not a matter where the court can apply the principle of mutual trust and confidence to documents provided by the IJA and, taking into account the fact that a lawyer will in normal course only act on instructions, conclude that he had given a mandate to his Romanian solicitor to act in the appeal at Iasi City Court of Appeal.

37. The Applicant on the other hand submits that, in line with the decision in Fizer, and bearing in mind that this court is entitled to take into account that a lawyer will, in the normal course, only act on instructions, it is open to this Court to conclude that the s.

45 objection is not made out.

SECTION 11 OBJECTION

38. The Respondent suggests that an internal inconsistency or lack of clarity arose from the fact that Part D of the warrant ticks two separate boxes, namely Box 1 which states that the Respondent appeared at ‘the trial resulting in the decision’ and Box 3.2 and 3.3 which state that, being aware of the scheduled trial, he had given a mandate to a private or state appointed lawyer to act for him and that he was served with the

decision via the chosen lawyer and informed of his various rights or appeal and / or retrial.

39. The conviction and sentence for Sentence No 1 were imposed on the 10th of February 2017 and amended and finalised at the Iasi Court of Appeal on the 25th of September 2017. There is no suggestion he was not present on both those dates. The suspension of this sentence was revoked on the 4th of October 2023 in his absence as a result of his conviction for offences No 2 and 3.

40. The ticking of Boxes 3.2 and 3.3 relates to the procedures that preceded the imposition of the second sentence. The respondent was acquitted of these offences in absentia on the 30th of December 2022 and thereafter, following a prosecution appeal against such acquittal, convicted and sentenced in absentia in respect of this matter.

The IJA certify that these in absentia hearings were conducted in compliance with the requirements of the Framework Decision (and therefore the Minister submits in compliance with Part D of Section 45 of the 2003 Act) as the respondent had been represented by his chosen lawyer at the relevant appeal hearing and the decision was thereafter served upon that lawyer.

41. No lack of clarity or confusion therefore arises in this regard as a result of the manner in which Part D of the Warrant was completed in the circumstances of this case. The Warrant and additional documentation set out the position clearly in relation to the attendance or non-attendance of the Respondent at the various hearings and the various protections offered to him.

42. I therefore reject the submission that there has been a failure to comply properly with the provisions of Section 11 of the 2003 Act.

SECTION 45 OBJECTION

43. In the present case the Respondent was not present at the hearing in Iasi City Appeal Court where he was convicted and sentenced in respect of Offences 2 and 3 in October 2023.

44. The Issuing Judicial Authority have however certified that the circumstances provided for at boxes 3.2 and 3.3 at Paragraph D of the EAW apply to his conviction and sentence in absentia in relation to offences 2 and 3. The applicant submits that this therefore is one of those instances where, though the subject of a request was convicted and sentenced in absentia, his surrender ought to be ordered under the Framework Decision. The boxes ticked read as follows:-

‘3.2 being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the state, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

OR

3.3 the person was served with the decision, in person, on 15 January 2023 (via the chosen lawyer at the address specified for the communication of case trial documents) and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and allows the merits of the case, including fresh evidence to be re-examined, and which may lead to the original decision being reversed; and the person expressly stated that he or she does not contest this decision’

45. The Respondent claims that, on the evidence adduced, the Issuing State cannot rely upon the boxes ticked in this case and furthermore in absentia appeal hearing at which Sentence 2 was imposed (‘the appeal hearing’) was not conducted in a manner which respected the defence the rights of the Respondent

Article 4a of the Framework Decision, s.45 of the 2003 Act & Case Law

46. Article 4a of the 2002 Framework Decision, as inserted by Article 2 of the 2009 Framework Decision, sets out a number of defined situations where a respondent must be returned even though the trial resulting in the decision proceeded in his absence.

These provisions are implemented in Irish Law by Section 45 of the 2003 Act (as amended) which now provides:-

‘(1) The High Court may refuse to order the surrender of a person under the Act if he or she did not appear in person at the proceedings resulting in the

decision or detention order in respect of which the European Arrest Warrant … was issued, unless …the warrant indicates the matters required by points 2,

3 and 4 of point (d) of the form of warrant in the Annex to the Framework

Decision as amended by Council Framework Decision 2009/299/JHA … as set out in the table to this section’

………..

TABLE

(d) Indicate if the person appeared in person at the trial resulting in the

decision:

1. - Yes, the person appeared in person at the trial resulting in the decision

2. – NO, the person did not appear in person at the trial resulting in the

decision.

3. – If, you have ticked the box under point 2, please confirm the existence of one of the following:

3.1a. – the person was summonsed in person on ….. 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 or she does not appear for the trial;

OR 3.1b. - the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she 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 either appointed by the person concerned or by the

State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

OR

3.3 – the person was served with the decision on ….. and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

- the person expressly stated that he or she does not contest this decision.

OR

- the person did not request a retrial or appeal within the applicable time frame;

OR

3.4 – the person was not personally served with the decision, but

- the person will be personally served with this decision without delay after the surrender, and

- when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

- the person will be informed of the time frame within which he or she has to request a retrial or appal , which will be …. days.

4. If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met’

47. If therefore the case falls within one of the grounds provided for at boxes 3.1 to 3.4 in Table D to Section 45 of the 2003 Act, the requested person must be surrendered even though the relevant hearing took place in absentia.

48. In order to successfully rely upon Box 3.2 at Table D, the respondent must have given a mandate to the lawyer, whether privately retained or provided by the state, to act on his or her behalf. In Minister for Justice v Sipka [2021] IEHC 587, Burns J refused surrender in circumstances where the lawyer appointed by the court had not been given any mandate by the Respondent, holding that this was not sufficient for the purposes of s. 45.

49. The court must place mutual trust and confidence in statements from the requesting state that a respondent had given a mandate to a lawyer. In Minister for Justice v Fiszer [2015] IEHC 644, the respondent had averred that whilst he had attended some trial dates, he did not attend further dates and claimed that because he did not have such further contact with his lawyers, they did not have instructions to act. Donnelly J dismissed this objection stating:-

‘I am satisfied that the respondent had undoubtedly given a mandate at the outset of the trial to the lawyer who appeared for him. Nonetheless, the respondent submitted that this trial lawyer had no mandate to appear for him.

He relied on his averment that he did not keep in touch with his lawyer ‘…who did not have any instructions to act after this date’. This averment is quite disingenuous in its careful obfuscation of the issue. It is not an indication that he withdrew his mandate to the lawyer. In fact, it is really stating the opposite, there was no positive withdrawal of the mandate, there was simply a failure on his part to keep in touch with his lawyer. The Respondents statements concerning lack of instructions is inextricably linked to his statement that he did not keep in touch with his lawyer. In those circumstances, the claim that the lawyer did not have any instructions to act after that date is an inadequate response to the statement in the EAW that the lawyer did have a mandate to act and did indeed act.

This court must place, and does place, mutual trust and confidence in the statements in the EAW and accompanying documentation provided by the issuing judicial authority. These documents indicate that this respondent had given a mandate to the lawyer. Furthermore, the court is entitled to take into account that a lawyer will, in the normal course, only act on instructions. The bare reference by the respondent to not keeping in touch with his lawyer leading to the implication that the lawyer had no longer any instructions to act, does not amount to a direct statement that the instructions were actually withdrawn’.

50. In Minister for Justice v Vingris [2017] IEHC 517, the court rejected the respondents claim that he had not given a mandate to his lawyer to act where the prosecution had appealed from his acquittal at first instance, where he agreed he had given a mandate to the lawyer to act on his behalf in the lower court. The court rejected his evidence and held that the mandate had not been withdrawn for the appeal.

51. In that case the Court had been highly critical of the evidence offered by both the Respondent and his Latvian lawyer. Donnelly J had specifically rejected the contention of the Respondent that he had only had an apprehension that the prosecution might appeal. She found that he had been in contact with the lawyer in respect of the matter in the initial period following the lodging by the prosecution of an appeal following his acquittal.

52. As was however made clear by Baker J. in Minister for Justice v Zarnescu [2020] IESC 59 the list of situations provided for in Table D to s. 45 is not exhaustive of the circumstances where a person may be surrendered following conviction and / or sentence in absentia. At paragraph of her Judgement, having conducted an extensive analysis of both domestic and European case law, Baker J summarised the applicable principles to be applied when considering this question in the following terms: -

‘(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;

(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.’

53. Later at paragraph 63 Baker J continued: “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.”

54. The Court of Appeal in Minister for Justice v Szamota [2023] IECA 143, having considered Zarnescu in light of subsequent jugments of the CJEU, confirmed that a relatively broad approach could be taken to waiver, subject to the rights of the defence. At paragraphs 28 and 29 of his Judgment 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’

55. In Minister for Justice v Szlachcikowski [2024] IECA 2024, the Court of Appeal considered Zarnescu, and Szamota and the decision of the UK Supreme Court in Bertino v Public Prosecutor’s Office Italy [2024] UKSC 9. Edwards J said 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 however observed that while an accused has a right to attend their trial – “it is a right not an obligation”

(par. 50). 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.”

56. Here therefore the court has to consider whether, in the circumstances of this particular case, the relevant trial in absentia at the Iasi City Appeal Court occurred in the circumstances certified by the IJA and provided for at Table D of Section 45 of the 2003 Act. If this is the case, then surrender must be ordered.

57. If, however, it is not shown that one of the instances provided for at Table D to Section 45 applies, then the Court must go on to consider whether, looking at all the available evidence, the trial in absentia nonetheless proceeded in a manner which respected the defence rights of the Respondent. If it did proceed in such a manner then, even though the case does not come within one of the specific grounds in Table D, surrender should be ordered.

Facts relevant to s. 45 issue

58. The facts centrally relevant to this issue are the following:-

(i) The Respondent was, following a first instance hearing at which he was represented by a lawyer to whom he had given a mandate, acquitted of the offences he then faced (Offences 2 and 3) at the Iasi City Court on the 30th of December 2022;

(ii) Following this acquittal, he had no further contact with his lawyers in relation to the matter. He says that as far as he was concerned the matter then was finished and he had no reason to have any further contact with anyone, including his solicitors, in relation to the matter;

(iii) The Prosecution appealed that acquittal to the Iasi City Appeal Court and so informed the lawyers who had represented the Respondent at the first instance trial;

(iv) At that time the Respondent was living in Ireland. He was not informed, by the Prosecution or the Romanian lawyers who had acted for him at first instance, Tomasechi & Co, that the Prosecution had appealed the acquittal. He was never made aware that such an appeal had been taken;

(v) The Respondent did not give any specific mandate to Tomasechi & Co to act on his behalf at this appeal. It is clear from the documentation provided that he did not sign any document giving them such a mandate and indeed Tomasechi & Co have confirmed they had no contact with him whatsoever in relation to the appeal;

(vi) The said lawyers appear to have acted on his behalf in the appeal. They did so without his specific mandate and without any instructions as to whether or how he wished to contest the prosecution appeal, an appeal at which he was tried and convicted not of the offences for which he was acquitted at first instance but substituted or similar offences arising from the same instance.

59. It is correct, as pointed out by the Minister, that the Respondent never formally revoked any mandate to his lawyers following his acquittal in Iasi City Court. And it furthermore seems to be the case that the Prosecution and the Court in Romania carried on with the appeal in the belief that Tomasechi & Co had a mandate from his client for this purpose.

Decision on s45 Issue

60. I do not consider that the facts as established show compliance with the boxes certified by the IJA and which are said by the Minister to meet the requirements at Part D to Section 45 of the EAW.

61. There is no evidence that the Respondent was here aware of the trial resulting in the

decision, namely the re-trial / appeal at the Iasi City Appeal Court following the

decision of the Prosecution to appeal the original acquittal in Iasi City Court.

62. The prosecution served all documents in relation to their appeal on the lawyer who had been mandated to act for the Respondent in the Iasi City Court. The prosecution proceeded on the basis that, having served those documents on these lawyers and these lawyers having seemingly confirmed that the Respondent had given them a mandate for the appeal, the appeal against the acquittal could properly proceed as he was aware of the appeal and was represented by a mandated lawyer for this purpose.

63. The evidence of the Respondent is however clear and substantially corroborated by information received from Tomaseschi & Co and indeed by the documentation provided by the IJA from the Court file. Having been made aware of his acquittal in the Iasi City Court, he assumed that was the end of the matter and had no cause to keep in contact with his Romanian lawyers. As confirmed in the emails received by his Irish Solicitor, Ms Clejan, his Romanian lawyers never contacted him to inform him of this appeal, and he gave them no mandate or instructions in relation to the appeal. When shown the document from the Romanian court file which was said to indicate they continued to act in the appeal having a ‘mandate’ from him so to do, he correctly points out that that mandate was not (as required) signed by him or on his behalf.

64. The evidence offered by the Respondent is clear and unambiguous and shows that the respondent was unaware of the appeal and did not give any mandate or instructions to his lawyers for the purposes of the appeal. Unlike the factual situation in Fiszer, the evidence on behalf of the Respondent cannot be described as disingenuous or obfuscatory on the relevant issue. Furthermore, the established factual position is entirely different to that under consideration by Donnelly J in Vingris as, unlike the situation there, I am satisfied that here the respondent had no knowledge of any appeal having been lodged by the prosecution against his acquittal.

65. On the available documentation and evidence therefore, despite applying the presumptions of mutual trust and confidence to the statements of the IJA on this issue, I cannot be satisfied that the respondent was aware of the appeal and / or had given a mandate to his lawyer to act for him in the appeal taken by the Prosecution at the Iasi City Court of Appeal. I cannot therefore be satisfied that the circumstances allowing for surrender as certified in the EAW, namely those as ticked by the IJA at Boxes 3.2 or 3.3 at Part D of the EAW, have been established here.

66. I must of course then go on to consider whether where surrender can be ordered as, although compliance with one of the circumstances provided for in Table D of Section 45 has not been established, this is a case where nonetheless the defence rights of the Respondent were upheld in the trial resulting in the decision, namely the in absentia hearing at Iasi City Court of Appeal in October 2023.

67. The Respondent was acquitted of the offences at the court of first instance and not unreasonably assumed that was probably the end of the matter.

68. He may have been aware of the possibility of a prosecution appeal, but he never received any notification of such an appeal from either the prosecution or his former lawyers. There is no evidence that he sought to avoid service of any documentation or deliberately sought to avoid contact with his lawyers. The evidence is in fact that neither the prosecution nor his lawyers ever sought to contact him in relation to the appeal.

69. Looking at the behaviour of the Respondent, this is not a case where it can be unequivocally established that, aware at a minimum of the existence of the proceedings, namely the appeal before the Iasi City Court of Appeal, and the consequences of non-attendance at such appeal, he made an informed choice not to attend or participate in any way in that appeal.

70. I do not consider that this is a case where it could be said that the Respondent knowingly waived his right to be present at the appeal before the Iasi City Appeal Court.

71. This is not therefore a case where it can be established that the defence rights of the Respondent were upheld in the course of the proceedings resulting in his conviction and sentence in absentia at Iasi City Appeal Court in October 2023.

72. In the circumstances the court cannot therefore order the surrender of the Respondent on foot of this European Arrest Warrant.