Bordea: Inferred Waiver of Presence in In-Absentia EAWs and No Penalty-Equivalence Requirement for Correspondence under s.38

Introduction

In Minister for Justice v Bordea [2025] IEHC 559, the High Court of Ireland (McGrath J) ordered the surrender of the respondent to Romania on foot of a European Arrest Warrant (EAW) for the purpose of serving a one-year sentence imposed for driving without a licence, contrary to Article 335(1) of the Romanian Criminal Code. The decision addresses two recurring issues in Irish EAW jurisprudence:

• Section 45 (in absentia trials and rights of defence): whether surrender can be ordered where the “trial resulting in the decision” took place in the requested person’s absence and there is no direct proof that he knew the date and place of the hearing or that it could proceed to conviction in his absence.
• Section 38 (correspondence): whether correspondence requires equivalence not only of criminal conduct but also of the penalty regime (i.e., whether a custodial sentence in the issuing state must be matched by custodial exposure in the executing state).

The Court, after issuing three detailed requests for further information under s.20 of the European Arrest Warrant Act 2003, rejected the respondent’s objections on both grounds. Importantly, McGrath J endorsed a broad, inference-based approach to waiver of the right to be present, consistent with the Court of Appeal’s trajectory post-Zarnescu, and confirmed that correspondence under s.38 does not entail any “penalty-equivalence” requirement.

Summary of the Judgment

• The Court accepted that the conduct on the EAW corresponded with the Irish offence of driving without a licence (s.38(1) Road Traffic Act 1961, as amended). The fact that the Irish offence is punishable by fine only did not bar surrender.
• On s.45, the Court found that:
  • There was no direct proof that the respondent knew the date and place of the appeal hearing (which was the “trial resulting in the decision”) or that the appeal could proceed to conviction in his absence.
  • However, on the cumulative evidence, his waiver of the right to be present could be inferred:
    • He knew of the criminal investigation from October 2019 and of formal charging and procedural obligations from May/June 2021.
    • He had a state-appointed lawyer at first instance and, by inference, instructed that lawyer to lodge an appeal.
    • He displayed a manifest lack of diligence in engaging with the appeal process, despite knowledge of conviction and sentence at first instance.
  • Accordingly, the respondent’s defence rights were sufficiently protected, and surrender was not barred.
• On s.38, the Court rejected the argument that correspondence requires minimum gravity equivalence. Citing CJEU authority (Sut v Belgium) and a literal reading of s.38, the Court held that correspondence concerns conduct only; the minimum gravity threshold applies in the issuing state.
• Surrender was ordered under s.16 of the 2003 Act.

Detailed Analysis

Procedural Context and s.20 Inquiries

The Court’s diligence under s.20 is notable. Three rounds of inquiries were addressed to the Romanian issuing judicial authority (IJA), seeking (among other things) clarity on notice of hearings, the “posting at the court premises” procedure, whether the respondent was expressly informed the trial could proceed in his absence, and a copy of any written acknowledgment by the respondent of rights and obligations.

The IJA’s replies established that:

• The respondent was summoned by post, telephone, and by public posting at the court premises across multiple dates; an arrest warrant also issued.
• He had been informed (and signed, under signature) of his procedural rights and obligations during the criminal investigation, including:
  • The duty to appear when summoned.
  • The duty to notify any change of address within three days; failure would deem service at the last address valid.
• A state-appointed legal counsellor, Mr. Constantin Eduard, represented him at first instance on 1 February and 15 March 2023; there was no evidence of representation on appeal.
• “Posting at the court premises” is a public display service method used cumulatively with service at the person’s domicile.

The Court also received, and carefully weighed, multiple affidavits from the respondent contesting knowledge of proceedings, the authenticity or understanding of documents he allegedly signed, and any instruction of counsel. These assertions were largely rejected (see “Credibility and Mutual Trust” below).

Precedents Cited and Their Influence

The Court’s analysis sits squarely within, and develops, the Irish and EU law on in-absentia trials and correspondence:

• Minister for Justice v Dolny [2009] IESC 48: sets the standard for correspondence—whether the acts or omissions would constitute an offence in Ireland if committed here at the time the EAW issued.
• Minister for Justice v Zarnescu [2020] IESC 59: Supreme Court’s structured approach to s.45. The Court here repeated Zarnescu’s principles, emphasizing that in-absentia return is permissible provided rights of defence were respected. Although Zarnescu highlights the need to establish knowledge of the date and place of trial and consequences of absence, subsequent case law has nuanced this.
• Minister for Justice v Szamota [2023] IECA 143: Court of Appeal endorses a relatively broad, EU-consistent approach to waiver, allowing consideration of “other circumstances,” including conduct aimed at avoiding service or lawyer contact.
• Minister for Justice v Szlachcikowski [2024] IECA 2024: Court of Appeal synthesizes Irish and UK Supreme Court (Bertino [2024] UKSC 9) and ECtHR jurisprudence, holding that while an effective, unequivocal waiver ordinarily requires awareness of the consequences of non-attendance, such awareness can be inferred from cumulative information and attendant circumstances. Knowledge of the exact date and place of trial is not an absolute requirement in every case.
• Bertino v Public Prosecutor’s Office Italy [2024] UKSC 9 (persuasive): the UK Supreme Court recognized that, in suitable fact patterns, unequivocal waiver may be found even absent an explicit warning that trial could proceed in absence.
• CJEU jurisprudence invoked via Szamota (TR, IR, LU & PH; and Dworzecki): stands for (i) the permissibility of inferring waiver from conduct and (ii) the executing authority’s ability to consider the requesting person’s avoidance behaviour and other circumstances, subject to safeguarding defence rights.
• CJEU, Sut v Belgium (case number variations appear in the materials): confirms there is no requirement that penalties correspond between issuing and executing states for correspondence; the minimum gravity threshold is a condition in the issuing state, not the executing state.

In Bordea, the High Court explicitly applies Zarnescu’s framework, but—critically—adopts the more flexible, inference-based approach endorsed in Szamota and Szlachcikowski, aligned with Bertino, to conclude that rights of defence can be respected even where there is no direct proof of notice of the date/place of the hearing.

Legal Reasoning on Section 45: In-Absentia and Defence Rights

Section 45 requires the executing court to refuse surrender if the requested person’s rights of defence were not respected in the “trial resulting in the decision” (here, the appeal hearing at the Ploiesti Court of Appeal on 12 September 2024). The standard tick-box routes to compliance (e.g., evidence that the person knew the date and place of trial and that it could proceed in their absence, or that they were represented by a mandated lawyer at that trial) were not made out on the documents:

• There was insufficient evidence that Bordea actually knew the date and place of the appeal hearing or that it could proceed to conviction in his absence (s.45 Schedule D, para 3.1(a)).
• There was no evidence he was represented by a mandated lawyer at the appeal (para 3.2) even though there was representation at first instance.

Nevertheless, the Court emphasised that the s.45 exceptions are not exhaustive. The executing court must make an “appropriate inquiry” whether the rights of defence were respected and whether the person effectively waived the right to be present. The key steps in the Court’s reasoning were:

• Findings of credibility: the respondent’s denials (knowledge of proceedings, awareness of obligations, authenticity of signatures, lack of instruction to counsel) were rejected. The Court relied on IJA documentation and the absence of any reliable countervailing proof (e.g., no expert signature evidence).
• Established facts:
  • From 14 October 2019 (the accident date), he knew a criminal investigation was underway and had admitted the conduct.
  • On 28 May 2021 and 2 June 2021 he was informed he was being charged; on 2 June 2021 he signed a record acknowledging procedural rights and obligations, including:
    • Obligation to appear when summoned; bench warrant possible in default.
    • Obligation to notify a change of address within three days; failure deems service at last known address valid.
  • He had a state-appointed lawyer at first instance who appeared for him and (by inference) lodged an appeal on his instructions.
  • Thereafter, he did not engage with the appeal, despite service attempts and public posting at the court premises.
• Inference of waiver: applying Szamota and Szlachcikowski, the Court inferred that the respondent appreciated the consequences of non-attendance—namely, that the appeal might proceed and be determined in his absence—because:
  • He knew of the prosecution and his obligations to attend/update address.
  • He knew first instance proceedings had occurred in his absence and resulted in conviction and sentence.
  • His own lawyer lodged the appeal.
  • He then had a manifest lack of diligence in engaging with the appeal or maintaining contact with counsel, notwithstanding knowledge of the conviction.

On this basis, the Court concluded that the respondent’s rights of defence were adequately respected and that his non-attendance at the appeal involved an effective, unequivocal, inference-based waiver consistent with the broader approach endorsed by the CJEU, the Court of Appeal, and the UK Supreme Court. The s.45 objection failed.

Legal Reasoning on Section 38: Correspondence and Minimum Gravity

The respondent accepted conduct correspondence (driving without a licence) but argued that because the Irish analogue is a fine-only offence, surrender is barred where the issuing state has imposed a custodial sentence. The Court rejected this argument:

• Section 5 and s.38 focus on whether the conduct would be an offence in Ireland if committed here at the time of the EAW. They do not require equivalence of penalties.
• Section 38 imposes a minimum gravity threshold in the issuing state (e.g., punishable by at least 12 months’ maximum, or a sentence of at least four months imposed). That threshold was met: a one-year sentence had been imposed.
• Relying on CJEU authority (Sut v Belgium), the Court affirmed that the Framework Decision does not require that the executing state’s offence carry a matching custodial penalty. A literal reading of s.38 yields no absurdity and does not support a “penalty-equivalence” gloss.

Accordingly, the s.38 objection also failed.

Credibility Findings and the Role of Mutual Trust

A pivotal element in the Court’s approach was its application of mutual trust and confidence between judicial authorities. In the absence of credible evidence undermining the IJA’s records, the Court accepted the authenticity and reliability of the issuing authority’s documentation, including the signed 2 June 2021 record of rights and obligations.

The Court noted:

• No expert evidence was adduced to support the respondent’s signature challenge.
• The Court’s own (cautioned) view of the signatures did not reveal obvious dissimilarity.
• Given mutual trust, and without a sound evidential basis to the contrary, the Court accepted the IJA’s narrative and documents.

This underscores a recurring theme in EAW cases: where the issuing state’s judicial documents are regular on their face, a requested person must present cogent, independent evidence to call their reliability into question.

Impact

Bordea consolidates two important strands of Irish EAW jurisprudence and will have immediate practical effects:

• Waiver by inference under s.45:
  • The decision confirms the Court of Appeal’s broader approach: surrender is not automatically barred merely because there is no proof that the requested person knew the exact date and place of the trial/appeal or was expressly warned it could proceed in his absence.
  • Awareness of ongoing criminal proceedings, the existence of a first instance conviction obtained in absence, representation at first instance, and a manifest lack of diligence in engaging with the process can cumulatively justify an inference of awareness of the consequences of non-attendance.
  • This shifts the litigation focus from formal proof of service to the totality of circumstances and the requested person’s conduct.
• No penalty-equivalence for correspondence under s.38:
  • The Court’s clear affirmation that correspondence is about conduct, not penalty, will reduce the viability of “fine-only in Ireland” objections where the issuing state imposes or authorises custody.
  • This aligns Irish practice with CJEU authority and the Framework Decision’s mutual-recognition logic.
• Service modalities:
  • The Court accepted “posting at the court premises” and service at the last known address as part of a lawful service regime, especially where the accused was under a statutory duty to keep authorities updated with address changes.
  • Defence practitioners will need concrete rebuttal evidence (e.g., expert reports, communications records, proof of due diligence) to overcome such service narratives.
• Practical burdens on requested persons:
  • Bordea signals that courts will look for documented diligence: proof of engagement with counsel/authorities, timely address updates, and steps to obtain trial information. Absence of such steps, where there is knowledge of proceedings, may be fatal.

Complex Concepts Simplified

• European Arrest Warrant (EAW): A streamlined system for surrender between EU states for prosecution or to serve a sentence. The executing court must trust the issuing judicial authority but can seek clarifications (s.20 requests).
• Correspondence (s.5, s.38 EAW Act 2003): The acts or omissions underpinning the EAW must constitute an offence in Ireland if committed here when the EAW issued. It is conduct-based; there is no requirement that the same or similar penalties exist in Irish law.
• Minimum gravity threshold (s.38): A condition that applies in the issuing state (e.g., a maximum sentence of at least 12 months or an imposed sentence of at least four months). It does not impose a mirror threshold in Ireland.
• Section 45 (in absentia): Surrender may be refused if the final trial was held in the person’s absence and their defence rights were not respected. The statute lists scenarios supporting surrender (e.g., proof of service, representation, or guaranteed retrial), but they are not exhaustive; courts can consider broader circumstances to decide if there was an effective waiver of the right to be present.
• Waiver of the right to be present: Can be express or inferred. While actual knowledge of proceedings is necessary, knowledge of the precise date and place is not always essential if the totality of evidence shows the person appreciated the consequences of non-attendance.
• Mutual trust: A principle under which the executing court generally accepts the issuing state’s judicial documents as authentic unless credible evidence shows otherwise.
• “Posting at the court premises”: A public display service method used alongside service at the person’s domicile. Its fairness depends on the legal framework and whether the person had a duty to update contact details.

Conclusion

Minister for Justice v Bordea is a significant High Court decision that advances two important points in Irish EAW law:

• On s.45, it embraces a principled, inference-based approach to waiver of presence in in-absentia cases, consistent with the evolving jurisprudence of the Court of Appeal and cognate European authorities. Even absent direct proof that the requested person knew the hearing date/place or that trial could proceed in absence, surrender may be ordered where cumulative circumstances demonstrate awareness of proceedings, representation, and a manifest lack of diligence leading to non-attendance, such that defence rights were respected.
• On s.38, it confirms that correspondence is a conduct-only test; the EAW regime does not require penalty-equivalence between issuing and executing states. The minimum gravity threshold is an issuing-state requirement, and the fact that the Irish analogue is fine-only does not bar surrender.

For future cases, Bordea underscores the importance of s.20 clarification requests, robust evidential challenges (where available) to issuing-state documentation, and the strategic need for requested persons to demonstrate practical diligence in engaging with proceedings. It strengthens mutual recognition by limiting technical objections and focusing on whether, in substance, the person knowingly stood aloof from proceedings whose consequences were reasonably foreseeable.