No Waiver Without Actual Knowledge: Probation Compliance Cannot Cure In Absentia Defects under s.45

Commentary on Minister for Justice v Nistor [2025] IEHC 609 (High Court of Ireland, 5 November 2025)

Introduction

This High Court decision addresses a recurring and legally sensitive question under the European Arrest Warrant (EAW) regime: when, and on what evidential foundation, can an Irish court surrender a person convicted in absentia in another Member State? The case concerns a Romanian EAW seeking the surrender of Mr Ioan Sabin Nistor to serve the balance of a three-year sentence for theft, imposed in 2013 following a trial conducted in his absence, later activated in 2020 after a revocation of a suspension of execution.

The Minister for Justice sought surrender under s.16 of the European Arrest Warrant Act 2003 (as amended), while the respondent opposed surrender under s.45 (trials in absentia), invoking the defence-rights guarantees derived from Article 4a of the Framework Decision 2002/584/JHA as amended by Framework Decision 2009/299/JHA. The case presents an unusual procedural history: an SIS alert in 2020, arrest in 2025, an initial set of EAW proceedings struck out for delay in production “as soon as may be” after receipt, and an immediate re-endorsement for execution under a new record number.

The central issues were: (1) whether the 2020 revocation hearing formed part of the “trial resulting in the decision” for s.45 purposes; (2) whether the Romanian EAW’s Part D certifications (especially D3.1(a) and D3.4) could be relied upon; and (3) if not, whether, on a Zaranescu-type assessment, the respondent’s defence rights were nonetheless vindicated through actual knowledge and waiver. The Minister relied on admissions made during the police investigation and the respondent’s later compliance for years with probation; the respondent argued lack of personal notification, lack of a mandated lawyer, and absence of an unconditional retrial right.

Summary of the Judgment

• The Court reaffirmed that the “trial resulting in the decision” under s.45 refers to the 2013 in absentia proceedings that resulted in the sentence, not the 2020 revocation hearing, which concerned only the execution of the sentence (applying CJEU authority including Ardic and LU).
• The Part D certifications could not be relied upon:
  • D3.1(a) (personal summons or actual knowledge of the trial date/place) was not established, applying CJEU Dworzecki.
  • D3.4 (unconditional right to retrial/appeal) could not be relied on, given additional information from Romania and the concerns highlighted in Merticariu (UKSC) and Iacobuta (IEHC) about Article 466 of the Romanian Criminal Code.
  • Representation by a state-appointed lawyer, without a personal mandate from the accused, does not satisfy s.45 (following Sipka).
• Proceeding to the fallback Zaranescu assessment, the Court held that it could not be “unequivocally” satisfied that the respondent had actual knowledge of the trial and the consequences of non-attendance, nor that he made an informed waiver of his right to be present.
• Crucially, the Court held that later compliance with probation conditions cannot “cure the mischief” of earlier in absentia defects in defence rights.
• Surrender under s.16 was refused.

Analysis

Precedents Cited and Their Influence

• Minister for Justice v Dolny [2009] IESC 48
  • Cited for the correspondence test: whether the acts alleged would constitute offences in Ireland if committed here at the time the EAW issued. The Court readily found correspondence with theft (s.4) and burglary (s.14) under the Criminal Justice (Theft and Fraud Offences) Act 2001. This aspect was not contested and set no obstacle to surrender.
• Dworzecki, CJEU (Case C‑108/16 PPU)
  • Used to assess when a person may be deemed to have been informed of the trial date and place. Absent proof of personal service or actual knowledge, the D3.1(a)/(b) conditions cannot be satisfied. The Court applied Dworzecki to conclude that the Romanian materials did not establish personal summons or actual receipt.
• Ardic (CJEU) and LU (CJEU)
  • Authorities establishing that post-sentence custodial activation/revocation hearings concern execution, not the “trial resulting in the decision.” The High Court relied on these to exclude the 2020 revocation hearing from the s.45 analysis, focusing strictly on the fairness and safeguards at the 2013 trial phase.
• Minister for Justice v Zaranescu [2020] IESC 59 (Baker J)
  • Sets the key fallback test: even where Part D “tick-boxes” are not satisfied, surrender may still be ordered if, on all the evidence, the executing court is satisfied that defence rights were upheld—requiring proof that the person had actual knowledge and made an informed waiver of the right to be present.
• Minister for Justice v Sipka [2021] IEHC 587
  • Representation by a state-appointed lawyer without a mandate from the accused does not meet the s.45 requirement that the person was defended by a chosen or mandated lawyer at the trial. This was decisive in undermining any reliance on Part D relating to representation.
• Minister for Justice v Iacobuta [2019] IEHC 150 and Merticariu v Judecătoria Arad [2024] UKSC 10
  • Both raised doubts about whether Romania’s Article 466 post-conviction remedy guarantees a sufficiently unconditional right to retrial/appeal to satisfy Part D3.4. The issuing judicial authority here could not provide an unconditional assurance, leading the Minister to concede that D3.4 could not be relied upon.
• Minister for Justice v Szamota [2023] IECA 143 and Minister for Justice v Szlachcikowski [2024] IECA (cited)
  • Court of Appeal decisions reinforcing that actual knowledge of the trial and the consequences of absence can sometimes be inferred, but only where the evidence is unequivocal; mere absence of inquiry or later administrative compliance will not suffice.

Legal Reasoning

The Court’s reasoning is structured in three principal stages.

1. Defining the “trial resulting in the decision”
   • The Court held that the 2020 revocation of suspension dealt only with execution of the sentence previously imposed in 2013 and could not alter the nature or quantum of that sentence. Therefore, the relevant “trial resulting in the decision” under s.45 was solely the 2013 in absentia proceeding.
2. Assessing the Part D conditions
   • D3.1(a) (personal summons/actual knowledge) was not satisfied: there was no proof of personal service or evidence that the respondent actually received the trial date and place (Dworzecki).
   • D3.4 (unconditional retrial/appeal) failed: the issuing judicial authority could not assure an unconditional right meeting the full requirements of Article 4a/Part D3.4; the Minister conceded accordingly (influenced by Merticariu and Iacobuta).
   • Mandated representation absent: representation by a state-appointed lawyer without evidence of a mandate from the respondent did not satisfy Part D (Sipka).
3. Fallback Zaranescu analysis: actual knowledge and waiver
   • Where Part D is not satisfied, the Court examines whether defence rights were nonetheless properly upheld and whether the person had actual knowledge of the trial and the consequences of non-attendance, yielding an informed waiver.
   • On the facts, the Court found insufficient grounds to infer actual knowledge or informed waiver:
     • The respondent’s admissions during police investigation were not made with evidence of legal advice; there was no adoption/confirmation in court.
     • He was not warned about service obligations, deemed service at a last-known address, or the consequences of non-cooperation—factors that often support inference of informed waiver in other cases.
     • No evidence showed he was personally aware of the charges or the trial proceedings before conviction.
     • No evidence showed he knew of appeal rights within the applicable time limits.
     • Representation was by a state-appointed lawyer without evidence of a mandate.
   • Importantly, the Court stated that subsequent compliance with probation conditions cannot cure earlier defects in the fairness of an in absentia trial. Administrative engagement post-sentence cannot retrospectively supply the missing elements of actual knowledge or informed waiver at the time of trial.

On that basis, the Court concluded that s.45 precluded surrender and refused the Minister’s application under s.16.

Impact and Significance

• Clear demarcation between conviction and execution phases
  • By reaffirming that revocation of a suspended sentence concerns execution, not the “trial resulting in the decision,” the judgment channels s.45 analysis to the original trial phase. Issuing states cannot rely on execution-stage proceedings to remedy defects in the conviction-stage safeguards.
• Elevated evidential expectations for in absentia cases
  • The executing court will not accept general assertions of notification: personal summons or concrete evidence of actual knowledge is essential for D3.1(a)/(b), and if relying on the retrial/appeal safeguard under D3.4, assurances must be unconditional and precise. Where the issuing judicial authority cannot give a definitive answer (as here), the Part D tick-box will not be accepted.
• Mandated-lawyer requirement crystallised
  • Representation by a state-appointed lawyer without proof of mandate or instruction by the accused does not satisfy s.45. Prosecuting authorities should be prepared to evidence that the lawyer was chosen or mandated by the accused, or else proceed on a waiver assessment.
• Probation compliance is neutral, not curative
  • The headline contribution of Nistor is the explicit holding that later compliance with probation conditions cannot validate an earlier in absentia conviction that did not meet s.45 safeguards. This prevents post-conviction engagement being used to infer back-dated knowledge or waiver at the time of trial.
• Practical consequences for Romanian EAWs post-Merticariu
  • Given the UKSC’s critique of Article 466 and similar concerns noted in Iacobuta, Irish courts may increasingly require concrete, unconditional assurances if D3.4 is invoked. Absent such assurances, cases will turn on the Zaranescu waiver analysis and the quality of proof of actual knowledge.
• Procedural discipline in EAW handling
  • Although not dispositive here, the Court’s earlier striking out of the first set of proceedings for failure to produce the EAW “as soon as may be” underscores that domestic procedural safeguards (e.g., s.14(4) of the 2023 Act) will be enforced strictly, even where re-endorsement remains available.

Complex Concepts Simplified

• European Arrest Warrant (EAW)
  • An EU mechanism enabling fast-track surrender between Member States for prosecution or execution of a sentence, subject to statutory safeguards in the executing state (here, Ireland’s EAW Act 2003 as amended).
• Section 45 (Trials in Absentia)
  • Implements Article 4a of the Framework Decision. Where the person was not present at the “trial resulting in the decision,” surrender is barred unless the EAW certifies one of the specific safeguards (Part D) or the executing court is otherwise satisfied that defence rights were effectively upheld (Zaranescu analysis).
• Part D tick-boxes
  • Standardised statements concerning the person’s knowledge of the trial, representation by a mandated lawyer, or an unconditional right to retrial/appeal. If correctly certified and credible, they permit surrender despite absence. If disapplied, the court must consider waiver on all the evidence.
• Mandated lawyer
  • A lawyer chosen or expressly instructed (mandated) by the accused. A state-appointed lawyer acting without the accused’s instruction generally does not meet the Part D representation safeguard.
• Actual knowledge and waiver
  • The executing court must be satisfied—often to a high evidential standard—that the person knew of the trial and the consequences of non-attendance and nonetheless chose not to attend. This can be proven directly or, sometimes, by strong inference from reliable evidence.
• “Trial resulting in the decision” vs execution proceedings
  • Only the conviction/sentencing proceedings are the “trial resulting in the decision” for s.45. Later steps such as revoking a suspended sentence concern execution and cannot retrospectively establish compliance at trial.
• Unconditional retrial right (Part D3.4)
  • To rely on D3.4, the issuing authority must show the person will have a genuine, unconditional right to a new hearing at which they may be present and the merits (including new evidence) can be reconsidered, potentially reversing the original decision. Conditional or uncertain remedies will not suffice.
• Correspondence (s.5, s.38)
  • The acts alleged must constitute offences in Ireland on the date of issuance of the EAW. Here, the acts corresponded to theft and/or burglary under the 2001 Act.

Conclusion

Minister for Justice v Nistor is a careful reaffirmation—and refinement—of the Irish approach to in absentia convictions under s.45. The Court draws firm lines on three fronts: (i) execution-stage hearings (like revocation of a suspended sentence) do not form part of the “trial resulting in the decision”; (ii) Part D certifications must be substantiated, especially where the executing court has reason to question unconditional retrial rights; and (iii) mandated representation means instructed representation—state appointment alone is insufficient.

The judgment’s most significant contribution is its explicit holding that subsequent compliance with probation conditions cannot neutralise earlier fair-trial defects. In other words, post-conviction engagement cannot be used to infer back-dated knowledge or waiver at the time of trial. Combined with the skepticism prompted by Merticariu about the sufficiency of the Romanian Article 466 remedy, Nistor signals that, absent robust evidence of personal notification or an unqualified retrial right, issuing states must expect close Zaranescu scrutiny of actual knowledge and waiver.

Practically, the case is a roadmap: if the issuing authority cannot demonstrate personal service or genuine awareness of trial particulars, cannot show a mandated lawyer, and cannot guarantee an unconditional retrial or appeal, then surrender will be refused unless the totality of evidence nonetheless clearly demonstrates an informed waiver. Nistor thus strengthens the defence-rights filter at the heart of s.45 and provides structured guidance for future EAW litigation in Ireland, particularly in cases emanating from jurisdictions whose in absentia remedies have come under appellate scrutiny.

Outcome: The High Court refused the Minister’s application under s.16 and did not order surrender.