European Arrest Warrant: Surrender Refused Where an In-Absentia Conviction on Prosecution Appeal Occurred Without Actual Notice or a Mandated Defence

1) Introduction

Minister For Justice v Culeac (Approved) [2026] IEHC 471 is a High Court (McGrath J) decision refusing surrender under a Romanian European Arrest Warrant (“EAW”). The EAW sought the respondent’s surrender to Romania to serve a total of six years’ imprisonment, comprised of:

• a four-year term imposed in October 2023 following a successful prosecution appeal against an earlier acquittal, and
• activation of a previously suspended two-year sentence from 2017, producing a six-year total.

Two objections were advanced:

1. Section 11 (clarity/validity): alleged lack of clarity in the warrant and additional information, particularly as to the offences and penalties.
2. Section 45 / Article 4a (in absentia): surrender should be refused because the respondent’s rights of defence were not protected in the in-absentia proceedings before the Romanian appellate court that “resulted in the decision” to be enforced.

2) Summary of the Judgment

• Identity was not in dispute; the warrant was issued by a competent “judicial authority”.
• The Court held that the required correspondence with Irish offences was satisfied (the case was not a “ticked box”/Article 2 list-offence case).
• The section 11 objection failed: there was no impermissible inconsistency in how the EAW form addressed attendance at different hearings and the activation of the earlier suspended sentence.
• The section 45 / in-absentia objection succeeded:
  • Romania could not rely on the “Table D” certifications (notably Box 3.2 and Box 3.3) because the evidence did not show the respondent was aware of the appeal hearing or had mandated counsel to represent him in it.
  • Looking more broadly (per Minister for Justice v Zarnescu [2020] IESC 59 and later authority), the Court found there was no unequivocal waiver of the right to attend and defend the appeal; therefore rights of defence were not upheld.
• Result: surrender was refused.

3) Analysis

3.1 Statutory and EU Framework

The decision sits at the intersection of:

• European Arrest Warrant Act 2003 (as amended):
  • Section 5 (correspondence of offences),
  • Section 11 (formal/content requirements),
  • Section 45 (in-absentia convictions and “Table D” conditions),
  • Section 20 (additional information requests).
• The Framework Decision 2002, as amended by the 2009 Framework Decision introducing Article 4a (in absentia).

Article 4a/section 45 does not impose an absolute bar on surrender after an in-absentia trial. Instead, it identifies circumstances in which surrender should proceed despite absence—typically where the person had proper notice, was represented on mandate, or has a robust right of retrial/appeal.

3.2 Correspondence (non-Article 2 list offences)

Because the Romanian offences were not “ticked box offences”, correspondence had to be shown under section 5. Applying Minister for Justice v Dolny [2009] IESC 48, the Court asked whether the acts or omissions described would constitute offences in Ireland if committed here at the EAW’s issue date.

The Court accepted correspondence with Irish excise/customs offences, including:

• Finance Act 2001, section 119(1) and section 119(2) (excise duty fraud/evasion),
• Customs Act 2015, section 14(1) (evasion-related conduct).

3.3 The Section 11 “lack of clarity” objection

The respondent argued that Part D of the EAW was internally inconsistent because it appeared to indicate both presence and absence at “the trial resulting in the decision”, while also ticking boxes associated with in-absentia safeguards.

McGrath J rejected that reading. The case involved multiple procedural stages across years:

• 2017 conviction with a suspended sentence (where presence was not disputed),
• 2022 acquittal at first instance for later offences,
• 2023 prosecution appeal resulting in conviction and sentence in absentia, plus activation of the earlier suspended sentence.

On the Court’s analysis, the EAW and the additional information adequately distinguished these events; no section 11 defect arose.

3.4 The core issue: Section 45 / Article 4a and in-absentia proceedings on prosecution appeal

(a) What Romania certified—and why it mattered

The issuing authority sought to bring the case within Table D conditions, relying principally on:

• Box 3.2: being aware of the scheduled trial, the person “had given a mandate” to a legal counsellor and was defended by that counsellor.
• Box 3.3: service of the decision and information about retrial/appeal rights (as framed in the EAW text).

If a Table D condition is established, section 45 contemplates that surrender should proceed notwithstanding in-absentia determination.

(b) The “mandate” requirement: influence of Irish authority

The Court treated “mandate” as a real, substantive requirement. It is not enough that a lawyer appeared: the respondent must have authorised that representation for the proceedings that “resulted in the decision”.

This approach aligns with:

• Minister for Justice v Sipka [2021] IEHC 587, where surrender was refused because a court-appointed lawyer had not been given a mandate by the requested person.
• Minister for Justice v Fiszer [2015] IEHC 644 (also referenced as Minister for Justice v Fiszer [2015] IEHC 664), where Donnelly J emphasised mutual trust in EAW materials and noted that a lawyer will normally only act on instructions; a mere failure to keep in touch did not equate to withdrawal of mandate.
• Minister for Justice v Vingris [2017] IEHC 517, where the court rejected a respondent’s attempt to deny mandate on an appeal following acquittal, in circumstances including strong adverse credibility findings and contact with the lawyer post-appeal lodging.

(c) Why mutual trust did not carry the day on these facts

McGrath J accepted the general premise that executing courts place mutual trust and confidence in the issuing state’s certifications. However, the Court held it could not be satisfied—even applying that presumption—that the respondent:

• was aware of the prosecution appeal hearing, or
• had given a mandate to his lawyer for the appeal proceedings.

The key distinguishing features (especially from Fiszer and Vingris) were evidential:

• The respondent’s evidence that he did not know of the appeal was found clear and credible.
• It was corroborated by the Romanian solicitors’ emails acknowledging they had no means of knowing whether he knew of the appeal and that he did not give “specifically a new instruction”.
• The “authorisation” document relied on by Romania was notably unsigned by the respondent (and had further blanks), supporting the conclusion that it did not evidence a specific appeal mandate.
• Notification steps described by Romania were largely directed to the lawyer (including a phone record and electronic file access), rather than establishing that the respondent personally had actual knowledge.

(d) The broader “rights of defence” enquiry beyond Table D

Crucially, the Court adopted the two-step structure reflected in Irish case law:

1. First, ask whether a Table D condition is established (if yes, surrender follows).
2. If not, consider whether—looking at all the circumstances—rights of defence were nonetheless upheld, such that surrender may still be compatible with Irish/EU law.

This second step draws heavily from Minister for Justice v Zarnescu [2020] IESC 59, where Baker J held that Table D scenarios are not exhaustive, and identified principles focused on: actual knowledge, waiver (express or implicit), the need for unequivocal establishment, and the limits of attributing knowledge based only on service or assumptions.

The High Court also situated the analysis within later appellate guidance:

• Minister for Justice v Szamota [2023] IECA 143, noting that (in light of CJEU authority including LU & PH) an executing authority may consider the person’s conduct (e.g., avoiding service or lawyer contact) in assessing defence-rights risk.
• Minister for Justice v Szlachcikowski [2024] IECA 2024, including the observation (with approval of Bertino v Public Prosecutor's Office Italy [2024] UKSC 9) that waiver is fact-specific and may in a strong case be unequivocal even without explicit warning that trial could proceed in absence—while still generally requiring appreciation of consequences.

(e) Application: no awareness, no avoidance, no waiver

On the Court’s findings:

• The respondent, having been acquitted, assumed the matter was finished; this was “not unreasonable”.
• There was no evidence he sought to avoid service or to avoid contact with lawyers; rather, the evidence suggested the prosecution and/or lawyers did not contact him about the appeal.
• The case therefore lacked the “unequivocal” basis needed to infer a knowing waiver of the right to attend and defend the prosecution appeal.

The Court concluded that the in-absentia appellate proceedings did not uphold the respondent’s defence rights, and surrender was therefore impermissible.

3.5 Impact and significance

This judgment is likely to be cited in future Irish EAW litigation for three practical propositions:

1. Prosecution appeals after acquittal are a high-risk setting for “mandate” assumptions: a first-instance retainer does not automatically prove an appeal mandate where the requested person is abroad, out of contact, and credibly unaware of the appeal.
2. Mutual trust is robust but rebuttable on a concrete evidential record: section 20 requests, solicitor-to-solicitor correspondence, and internal inconsistencies (e.g., unsigned mandate forms) can cumulatively prevent the court from being “satisfied” of Table D conditions.
3. The Zarnescu framework remains central: even where Table D is not met, the court must still ask whether rights of defence were protected; but where there is no actual knowledge and no informed waiver, surrender will be refused.

For issuing states (and for Irish requesting practice via section 20), the decision underscores the importance of being able to demonstrate: (i) how the person was made aware of the appeal hearing, and (ii) how counsel’s authority to act in the “trial resulting in the decision” was actually grounded.

4) Complex Concepts Simplified

• “Correspondence” (section 5): the Irish court checks whether the conduct described would be a crime in Ireland; it does not require identical offence labels, but the underlying acts must map onto Irish criminal law.
• “Ticked box offences”: for certain serious offence categories under Article 2 of the Framework Decision, correspondence need not be proved; this was not such a case.
• “Trial resulting in the decision”: not every hearing in the history matters; the focus is the proceeding that produced the conviction/sentence the EAW seeks to enforce—here, the prosecution appeal that ended in conviction and sentence.
• In absentia: the person was not present; surrender is not automatically barred, but the executing court must ensure defence rights were protected through notice, representation on mandate, retrial rights, or unequivocal waiver.
• “Mandate” to a lawyer: authority given by the accused for the lawyer to act in the relevant proceedings; representation without a real mandate may fail Box 3.2.
• “Waiver”: giving up the right to attend/defend. Courts require it to be “unequivocal”—not lightly inferred—typically grounded in actual knowledge and informed choice.

5) Conclusion

Minister For Justice v Culeac (Approved) [2026] IEHC 471 confirms that an executing court will not order surrender to serve a sentence imposed in absentia on a prosecution appeal where it is not established that the requested person (a) was actually aware of the appeal hearing, or (b) had a mandated defence for that proceeding, and where the overall circumstances do not support an unequivocal waiver of defence rights. The decision refines the practical application of section 45/Table D by drawing a sharp factual line between mere continuity of prior representation and genuine, informed participation (or waiver) in the specific appellate proceeding that generated the enforceable sentence.