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Minister for Justice, Home Affairs and Migration v Ikekhua (Approved)
Factual and Procedural Background
This is an application by the Applicant for the surrender of the Respondent to the issuing state pursuant to section 16 of the European Arrest Warrant Act 2003, on foot of a European Arrest Warrant issued on 13 March 2025 by Attorney [Last Name]. The Respondent was arrested on 12 November 2025 on foot of an SIS alert and brought before this Court; the warrant was produced on 24 November 2025. The Respondent's identity was not disputed.
Part B of the warrant sought surrender to execute a custodial sentence imposed by an "Aggregation Order N. 42/2024 SIEP" dated 5 April 2024. Part C recorded an overall sentence of 8 years and 4 months' imprisonment, ancillary penalties including a €6,000 fine, suspension of driving privileges and deportation; 8 years, 3 months and 25 days remained to be served. Part D recorded that the Respondent was not present at the hearings resulting in the decisions and that the Issuing Judicial Authority (IJA) had invoked paragraph 3.1b (and paragraph 4) of Part D.
The Respondent swore an affidavit (27 January 2026) saying he had been arrested in or about 2010, spent approximately two years in custody, was released to house arrest which ended around 2014, and believed proceedings were finished. The Respondent does not consent to surrender and filed a notice of objection on 3 February 2026. The central contest concerns the legal consequences of the Respondent's deportation by the issuing state on 1 August 2014 and the application of section 45 of the 2003 Act to trials held in the Respondent's absence.
Requests for further information under section 20 were made 1 December 2025. Two responses were received (10 December 2025 and 5 February 2026). The parties accepted an agreed factual history derived from those responses: the Respondent was arrested 1 March 2014 and produced 3 March 2014, represented by a lawyer at a first instance hearing on 19 May 2014 (convicted, sentenced to 1 year 6 months, €6,000 fine); deported 1 August 2014 and did not return; an appeal was filed on his behalf 16 September 2014; on 23 January 2015 an appeal decision confirmed the first-instance judgment (final 9 May 2015); a first-instance proceeding in October 2018 resulted in a nonsuit at first instance; on 11 July 2023 an appellate court partially reformed the 2018 judgment and sentenced the Respondent (not present); the Aggregation Order of 5 April 2024 produced the overall sentence underlying the warrant. The IJA asserted that notifications to the Respondent's lawyers were valid under the issuing state's law.
Legal Issues Presented
- Whether surrender is prohibited by section 45 of the European Arrest Warrant Act 2003 because the Respondent did not appear in person at the proceedings resulting in the decisions sought to be executed;
- Whether the IJA's invocation of paragraph 3.1b (notification "by other means" such that it was "unequivocally established" the Respondent was aware) or evidence of representation by lawyers suffices to show the Respondent was aware of the scheduled trials or unequivocally waived the right to be present;
- Whether the Aggregation Order constitutes a "trial resulting in the decision" for the purposes of section 45 and related provisions.
Arguments of the Parties
Respondent's Arguments
- The warrant lacks clarity and, more importantly, the Respondent was deported by the issuing state in 2014 and could not have attended later proceedings; there is no evidence he was notified of scheduled trial dates, so surrender is prohibited by section 45 of the 2003 Act.
- No basis to infer waiver from representation by lawyers, especially where lawyers appear years after deportation or where a lawyer was court-appointed; there is no evidence of attempts to contact the Respondent.
- An infirmity in one underlying proceeding (particularly given aggregation) is fatal to the entire request.
Applicant's Arguments
- The additional information supplied by the IJA (invoking paragraph 3.1b and describing notification to defence lawyers) provides adequate assurance that the Respondent's fair trial rights were protected; trials and appeals should be presumed fair.
- The Respondent was represented by lawyers of his choice at most hearings and appeals were pursued on his behalf; an ongoing retainer or mandate can be inferred from that conduct.
- The Aggregation Order was administrative/executive in character (cumulative measure) and did not require the Respondent's presence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Minister for Justice and Equality v. Zarnescu [2020] IESC 59 | Approach to s.45: interpretation in light of CJEU jurisprudence; principles on return of persons tried in absentia and the need for unequivocal proof of awareness of trial date. | Supreme Court guidance framed the analytical approach: the Court must scrutinise whether the requested person knowingly waived rights and whether rights of defence were protected. |
| Minister for Justice and Equality v. Skwierczynski [2016] IEHC 802 | Domestic analysis illustrating the intention to give effect to the Framework Decision and that surrender is not to be refused simply because facts fall outside s.45 examples where rights are adequately protected. | Used to support that the requested authority may look to overall circumstances beyond strict table exceptions to assess protection of defence rights. |
| Dworzecki (Case C-108/16 PPU, ECLI:EU:C:2016:346) | CJEU authority cited as part of conforming interpretation of section 45. | Referred to in explaining that s.45 must be interpreted consistently with CJEU principles. |
| Zdziaszek (Case C-271/17 PPU, ECLI:EU:C:2017:629) | Permits executing authority to take account of all circumstances to ensure defence rights are respected beyond the Table examples. | Supported the proposition that the Table's list is not exhaustive and broader circumstances may be considered. |
| Melloni v. Fiscal (Case C-399/11, ECLI:EU:C:2013:107) | Waiver of the right to be present can be express or tacit but must be unequivocal and attended by safeguards. | Used to emphasise that waiver must be established unequivocally and defence rights must not be infringed. |
| Sejdovic v. Italy (Application No. 56581/00) | ECtHR principle that where a person has not been notified of a hearing date, waiver cannot be inferred; actual knowledge must be shown. | Applied to underscore need for proof of actual knowledge of trial date and that appointment of a lawyer alone may not suffice. |
| M.T.B. v. Turkey (Application No. 47081/06) | Focus on whether applicant had knowledge of proceedings; without knowledge no valid waiver. | Reinforced the importance of establishing actual knowledge before inferring waiver. |
| Minister for Justice and Equality v. Fiszer [2015] IEHC 664 | Recognition that mutual trust in EAW documentation is appropriate but factual context may show ongoing awareness by accused where lawyer acted on instructions. | Distinguished factual situations where the accused had repeatedly appeared with counsel and thus was aware of an ongoing trial. |
| Minister for Justice v. Malecki [2024] IEHC 512 | Applied Zarnescu principles; refusal where respondent could not attend and alleged lack of mandate to lawyers; caution when respondent is in custody abroad. | Considered analogous features (inability to attend) and supported careful scrutiny of whether a mandate existed and whether rights were protected. |
| Minister for Justice v. Sipka [2021] IEHC 587 | Refusal where requirements of s.45 not met, no unequivocal waiver and no evidence of notification or mandate to counsel. | Used as an example where court concluded surrender was precluded by failure to meet s.45 requirements. |
| Mocek (No 2) | Referenced as authority cautioning particular care where it is said a person in custody waived rights. | Referred to in context of caution when respondent could not physically attend. |
| Seliwak | Referenced regarding duties and obligations of authorities where a person is in custody. | Mentioned in connection with duties on authorities when a person is detained abroad. |
Court's Reasoning and Analysis
The Court analysed the statutory scheme (the 2002 Framework Decision as amended by the 2009 Framework Decision and section 45 of the 2003 Act) and the jurisprudence of the CJEU, ECtHR and domestic superior courts. The Court identified the "core fact" as the Respondent's deportation by the issuing state on 1 August 2014 and noted that the enforceable judgments postdate that deportation.
The IJA had invoked paragraph 3.1b of Part D for both relevant judgments, asserting that the Respondent "by other means" actually received official information of scheduled trials such that it was "unequivocally established" he was aware and informed of consequences of non-attendance. The Court examined the further information supplied and the agreed factual history: initial engagement with counsel in 2014, deportation, later proceedings and appeals conducted in the Respondent's absence with lawyers recorded as representing him.
The Court emphasised established principles: waiver of the right to be present may be express or tacit but must be unequivocal; actual knowledge of the date and place of trial is generally required (Sejdovic, M.T.B.); the Table to s.45 is not exhaustive and the executing authority may consider broader circumstances (Zdziaszek, Zarnescu). The Court also noted that where a person cannot physically attend (as here, by reason of deportation), particular care is required.
Applying those principles to the evidence, the Court found no evidential basis to conclude that the Respondent was notified of the relevant hearing dates or that it was "unequivocally established" he was aware of them. There was no evidence of attempts to contact the Respondent after deportation; no extrinsic evidence showing actual knowledge; no manifest absence of diligence by the Respondent from which an informed choice to avoid service could be inferred; and no clear assurance that a retrial or appeal would be available if surrendered. The Court rejected the argument that notifications to or actions by counsel, or the IJA's statement about Italian law treating notification to counsel as valid, sufficed to discharge the requisite standard of unequivocal awareness in the circumstances of this case.
Holding and Implications
Holding: The Court concluded that it cannot be said unequivocally that the Respondent was aware of the scheduled hearing dates and that the circumstances do not support an inference that he waived his defence rights. Having regard to section 45 of the 2003 Act, the Court REFUSED the request for surrender.
Implications: Direct effect—surrender of the Respondent to the issuing state is refused. The Court applied established authorities and did not purport to set a new precedent beyond reaffirming the principles required by the cited jurisprudence; the decision turns on the specific facts (notably the Respondent's deportation and the evidential record).
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