Deportation and Trial-in-Absentia in European Arrest Warrants: “Unequivocal” Knowledge Cannot Be Inferred from Deemed Notice to Lawyers

Court: High Court of Ireland  |  Citation: [2026] IEHC 405  |  Date: 24 June 2026  |  Judge: Mr. Justice Sean Gillane

1. Introduction

This decision concerns an application under s.16 of the European Arrest Warrant Act 2003 (as amended) for the surrender of the respondent to Italy to serve a custodial sentence reflected in an Italian “Aggregation Order” (a cumulation of sentences). The respondent did not consent to surrender and objected, principally on trial-in-absentia grounds under s.45.

The critical factual feature was that the respondent had been deported from Italy on 1 August 2014, yet the “enforceable judgments” underpinning the aggregated sentence included appellate/disposing decisions in 2015 and 2023, during which he was not present and (on the Irish court’s assessment) there was no evidence of any attempt to notify him of hearing dates.

2. Summary of the Judgment

• The Court accepted identity, gravity, and correspondence were satisfied, and treated the Aggregation Order as an executive-phase measure rather than a “trial resulting in the decision”.
• The Court refused surrender under s.45 because it could not be said unequivocally that the respondent was aware of the relevant scheduled hearings, nor could waiver be inferred.
• The issuing authority’s reliance on Italian law (that service/notification on a “defence lawyer of choice” is equivalent to service on the defendant) did not answer the Framework Decision and fair-trial requirements as applied by Irish courts.
• The Court regarded the respondent’s deportation by Italy as the “core fact” and a weighty factor in assessing the issuing state’s responsibility to notify him of proceedings occurring afterwards.
• The further information suggesting only limited, exceptional post-finality remedies (“STRICTLY provided by law”) did not provide confidence that a retrial/appeal would be available as of right.

3. Analysis

3.1 Precedents Cited and Their Influence

(a) Supreme Court: Minister for Justice and Equality v. Zarnescu [2020] IESC 59

The judgment is structured around Zarnescu, which is treated as the principal domestic authority on s.45. Gillane J. adopted its central approach: the court must assess whether the person knowingly waived the right to attend, and whether rights of defence were adequately protected. The High Court emphasised Zarnescu’s requirement that awareness must be established unequivocally, and that waiver is not lightly inferred.

Importantly, Zarnescu also stands for a conforming interpretation of s.45 in light of CJEU jurisprudence: the “Table” examples are not exhaustive, but any broader inquiry remains anchored in whether the respondent had actual knowledge (which may sometimes be proven by extrinsic evidence).

(b) CJEU: Dworzecki (Case C-108/16 PPU, ECLI:EU:C:2016:346), Zdziaszek (Case C-271/17 PPU, ECLI:EU:C:2017:629), Melloni v. Fiscal (Case C-399/11, ECLI:EU:C:2013:107)

These cases support two propositions deployed in the reasoning:

• Non-exhaustiveness / holistic assessment: From Zdziaszek, the executing authority may consider all the circumstances to ensure defence rights are respected.
• Waiver must be unequivocal and safeguarded: From Melloni v. Fiscal, waiver may be express or tacit, but must be unequivocal and attended by safeguards; a fair trial is not violated where the accused was informed of the trial’s date/place or defended by counsel under a mandate.

Gillane J. treated these authorities as reinforcing the central inquiry: did the respondent know of the trial date and consequences, or otherwise unequivocally waive attendance? In this case, deportation and lack of evidence of notification prevented that conclusion.

(c) ECtHR: Sejdovic v. Italy (Application No. 56581/00, 1 March 2006) and M.T.B. v. Turkey (Application No. 47081/06, 12 June 2018)

The Court used these authorities (via Zarnescu) to underline a foundational principle: without knowledge of proceedings/hearing dates, no valid waiver can be inferred, and an accused should not be left with the burden of proving non-evasion. That dovetailed with the Irish court’s unwillingness to accept “deemed notice” rules as a substitute for actual awareness under the Framework Decision standard.

(d) Irish High Court / Court of Appeal line: Minister for Justice and Equality v. Skwierczynski [2016] IEHC 802; Minister for Justice and Equality v. Skwierczynski [2018] IECA 204

These cases supported the approach that surrender should not be refused solely because the precise Table box is not satisfied, provided the court can be assured defence rights were protected. Gillane J. accepted this general approach, but held that the evidential gap here (especially post-deportation) prevented such assurance.

(e) Fact-sensitive comparators: Minister for Justice and Equality v. Fiszer [2015] IEHC 664; Minister for Justice v. Sipka [2021] IEHC 587

Fiszer was used to illustrate when an inference of awareness and continuing mandate might properly be drawn: an accused who attended multiple hearings in an ongoing trial and then left the issuing state could be treated as aware of the “scheduled trial” even if not aware of a specific later date. Gillane J. distinguished that scenario sharply: here, the time gap (including a nine-year interval) and the respondent’s removal by the state made it unrealistic to assume an ongoing mandate or informed waiver.

Sipka exemplified the opposite outcome: refusal where the person was not aware of hearing dates, had not mandated counsel, lacked an automatic retrial right, and was not served with the decisions. Gillane J. treated the present case as closer in principle (absence of unequivocal knowledge) notwithstanding differences in detail.

(f) Recent High Court: Minister for Justice v. Malecki [2024] IEHC 512

Although distinguished on evidential peculiarities, Malecki was treated as relevant because it emphasised “particular care” where the person could not physically attend proceedings, and the state knew that fact. Gillane J. accepted the analogy in principle: deportation likewise made attendance impossible and placed greater weight on the issuing state’s responsibility to ensure effective notification.

3.2 Legal Reasoning

(1) The significance of the issuing authority’s choice of Part D basis (3.1b)

The issuing authority invoked Part D, 3.1b for both enforceable judgments—i.e., that the respondent “by other means actually received official information” of date and place such that it was “unequivocally established” he was aware, and was informed a decision may be handed down if he did not attend.

Gillane J. treated this as highly significant because it framed what must be demonstrated: actual receipt/actual knowledge of the scheduled hearing (and consequences), not merely representation by counsel or deemed service under domestic law. The Court found the evidential record did not support the 3.1b assertion.

(2) Deportation as the “core fact” shaping the s.45 assessment

The Court held the “core fact” was the respondent’s deportation by the issuing state before the crucial post-2014 proceedings. This was not merely background: it directly affected (i) the plausibility of actual knowledge, (ii) the fairness of inferring waiver, and (iii) the allocation of responsibility between individual diligence and state notification duties.

In effect, deportation made it harder to justify an inference that the respondent either (a) stayed engaged with counsel and courts in Italy, or (b) made an informed choice to avoid service. The Court also found no “manifest absence of diligence” from which informed non-attendance could be inferred.

(3) Deemed notice to lawyers is not, by itself, an answer under s.45 / Framework Decision standards

Italy relied on domestic law principles: counsel of choice represents the defendant at all stages; notifications on counsel are equivalent to notifications on the defendant. The High Court held that this could not “make redundant” the executing court’s enquiry required by Zarnescu. Mutual trust does not eliminate the need to verify, on the evidence, whether defence rights were protected to the required standard—especially where 3.1b is asserted but not supported by concrete notification efforts.

(4) Mandate/retainer and the limits of inference over time

The Court refused to infer an ongoing mandate/retainer spanning years after deportation, particularly where one appellate hearing record described representation by a “delegated” lawyer (treated by the Court as effectively court-appointed in context). Even where a lawyer is described as “of choice” in 2023, Gillane J. held it asked too much to infer continuing instructions and informed waiver nine years after removal.

(5) Retrial/appeal availability

The issuing authority’s replies that judgments were final and that any vacatur/review was only in cases “STRICTLY provided by law” were treated as insufficient to reassure the Court that a meaningful retrial/appeal right would be available upon surrender. While not the sole reason for refusal, this weakened any argument that surrender could proceed notwithstanding absence at trial.

3.3 Impact

• Deportation increases scrutiny: Where the issuing state itself removed the person, Irish courts are likely to treat that as a powerful factor against inferring waiver or ongoing mandate, and in favour of requiring clear evidence of actual notification efforts.
• Part D box selection matters: If an issuing authority invokes 3.1b, it effectively asserts actual receipt/awareness; where the underlying record suggests only “deemed notice” to lawyers, the warrant may be vulnerable unless supported by concrete evidence showing how awareness was “unequivocally established”.
• Limits of “lawyer-notified = defendant-notified”: The decision signals that domestic procedural rules equating service on counsel with service on an accused will not automatically satisfy the Framework Decision’s fair-trial protections in an executing state, particularly in post-removal scenarios.
• Aggregation/cumulation orders: Treating aggregation as an executive step will not cure defects in the underlying “trial resulting in the decision” proceedings; if the enforceable judgments fail s.45 standards, the aggregated enforcement request will fail.

4. Complex Concepts Simplified

• European Arrest Warrant (EAW): A fast-track EU mechanism requiring a Member State (executing state) to arrest and surrender a person to another Member State (issuing state), subject to defined safeguards.
• Trial in absentia: Criminal proceedings resulting in conviction/sentence where the accused did not appear in person. Surrender to enforce such a conviction is restricted unless safeguards/conditions are met.
• s.45 (Irish law): Implements EU rules on when Ireland may refuse surrender for convictions in absentia. The “Table” lists standard scenarios (personal summons, proven awareness, mandated lawyer defence, or guaranteed retrial rights), but the inquiry is not purely box-ticking: the court must be satisfied defence rights were respected and any waiver was unequivocal.
• Part D, 3.1b: A statement by the issuing authority that, although not personally summoned, the person actually received official information of date/place such that awareness was “unequivocally established”, and was told a decision could be made if they did not attend.
• Waiver (of the right to attend): A person can give up the right to attend, but only if the waiver is free, informed, and unequivocal. Without knowledge of the proceedings/hearing date, waiver generally cannot be inferred.
• Mutual trust: EU cooperation assumes Member States’ systems are rights-compliant, but it does not remove the executing court’s duty to refuse surrender where the legal standard for defence rights is not met on the evidence.

5. Conclusion

The High Court refused surrender because, despite Italy’s invocation of Part D, 3.1b, the evidence did not show—unequivocally—that the respondent knew the hearing dates (or the consequences of not attending) for the enforceable judgments underpinning the aggregated sentence. The decision treats the respondent’s deportation by the issuing state as a decisive contextual factor: it undermines inferences of informed waiver, makes reliance on “deemed notice to lawyers” particularly problematic, and heightens the issuing state’s responsibility to show effective notification.

As a precedent within Irish EAW jurisprudence, the case reinforces that s.45 is ultimately a defence-rights safeguard, not a formalistic presumption that representation or domestic deemed-service rules necessarily establish awareness—especially where the issuing state’s own actions (like deportation) made attendance impossible and engagement unlikely without demonstrable notification efforts.